[HISTORY: Adopted by the Town Council of the Town of Johnston 2-8-2010 by Ord. No.
2010-3.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Excavations — See Ch. 161.
Plumbing — See Ch. 252.
Sewers — See Ch. 279.
Soil erosion and sediment control — See Ch. 291.
Subdivision of land — See Ch. 303.
Wastewater management — See Ch. 332.
Water — See Ch. 335.
Wells — See Ch. 337.
Zoning — See Ch. 340.
[1]
Editor's Note: This ordinance was originally adopted
as Chapter 280 but was renumbered to maintain the organizational structure
of the Code.
The purpose of this chapter is to regulate illicit connections
and discharges into the municipal separate storm sewer system (MS4)
as is necessary to protect Johnston's water bodies and groundwater,
and to safeguard the health, safety, and welfare of the public, and
the environment, from contaminated stormwater runoff. The objectives
of this chapter are:
A.
To prevent (or reduce to the maximum extent practicable) pollutants
entering Johnston's MS4;
B.
To require the removal of all such illicit connections and unauthorized
discharges to the MS4;
C.
To comply with state law and federal statutes and regulations relating
to stormwater discharges; and
D.
To set forth the legal authority and procedures to carry out all
inspection, monitoring, and enforcement activities necessary to ensure
compliance with this chapter.
As used in this chapter, the following terms shall have the
meanings indicated:
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.
Activities subject to RIPDES construction permits. As of
March 2003, RIPDES Stormwater Phase II permits are required for construction
projects resulting in land disturbance of one acre or more. Such activities
include but are not limited to clearing and grubbing, grading, excavating,
and demolition.
Any person who causes, allows, permits, or is otherwise responsible
for a discharge, including, without limitation, any operator of a
construction site or industrial facility.
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.
Either of the following:
A.
Any drain or conveyance, whether on the surface or subsurface, which
allows an illegal discharge to enter the storm drain system, including
but not limited to any conveyances which allow any nonstormwater discharge
including sewage, process wastewater, and wash water to enter the
storm drain system 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 officer; or
B.
ILLICIT DISCHARGE
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
Any drain or conveyance connected from a commercial or industrial
land use to the storm drain system which has not been documented in
plans, maps, or equivalent records and approved by an authorized enforcement
officer.
Any discharge to a municipal separate storm sewer that is
not composed entirely of stormwater, except discharges pursuant to
an RIPDES permit (other than the RIPDES permit for discharges from
the municipal separate storm sewer) and discharges resulting from
fire-fighting activities.
A conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters,
ditches, man-made channels, or storm drains):
C.
Owned or operated by a city or town or the state, or other public
body (created by or pursuant to state law) having jurisdiction over
disposal of sewage, industrial wastes, stormwater, or other wastes,
including special districts under state law such as a sewer district,
flood control district or drainage district, or similar entity, or
an Indian tribe or an authorized Indian tribal organization, or a
designated and approved management agency under Section 208 of the
SWA that discharges to waters of the state;
D.
Designed or used for collecting or conveying stormwater;
E.
Which is not a combined sewer; and
F.
NONSTORMWATER DISCHARGE
OPERATOR
OWNER
PERSON
POLLUTANTS
STORMWATER
UNAUTHORIZED DISCHARGE
WATERCOURSE
WATERS OF THE STATE
Which is not part of a publicly owned treatment works (POTW) as defined
in Rule 3 of the RIPDES Regulations.
Any discharge that is not composed entirely of stormwater.
The party or parties that either individually or taken together
have the day-to-day operational control over the facility's activities
and the ability to make modifications to such activities.
The party or parties that either individually or taken together
have legal title to any premises.
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.
Anything which causes or contributes to pollution. Pollutants
may include, but are not limited to, paints, varnishes, and solvents;
oil and other automotive fluids; nonhazardous liquid and solid wastes
and yard wastes; refuse, rubbish, garbage, litter, or other discarded
or abandoned objects, ordinances, and accumulations, so that same
may cause or contribute to pollution; floatables; pesticides, herbicides,
and fertilizers; hazardous substances and wastes; sewage, fecal coliform
and pathogens; dissolved and particulate metals; animal wastes; wastes
and residues that result from constructing a building or structure;
heat; and noxious or offensive matter of any kind.
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
A discharge of stormwater not authorized by an RIPDES permit,
or an allowable stormwater discharge found to be a significant contributor
of pollutants to the MS4.
A natural or man-made surface drainage channel or body of
water (including a lake or pond) through which a water flow occurs,
either continuously or intermittently.
Surface and groundwaters within the boundaries of the State
of Rhode Island and subject to its jurisdiction.
The Director of the Department of Public Works and/or his or
her designee shall administer, implement, and enforce the provisions
of this chapter.
A.
Prohibition of unauthorized discharges.
(1)
No person shall discharge or cause to be discharged into the MS4 or watercourses any materials, including but not limited to pollutants or waters containing any pollutants that cause or contribute to a violation of applicable water quality standards, other than stormwater, unless the discharges have received all required federal, state and local permits including the National Pollutant Discharge Elimination (NPDES) permit, or is included in one of the following categories of discharges listed in Subsection A(2).
(2)
The following sources are allowable nonstormwater discharges:
(a)
Discharges which result from the washdown of vehicles at retail
dealers selling new and used automobiles where no detergents are used
and individual car washing;
(b)
External building washdown where no detergents are used;
(c)
The use of water to control dust;
(d)
Fire hydrant flushings;
(e)
Natural springs;
(f)
Uncontaminated groundwater;
(g)
Dechlorinated pool discharges;
(h)
Air-conditioning condensate;
(i)
Lawn watering;
(j)
Potable water sources, including water line flushings;
(k)
Irrigation drainage;
(l)
Pavement washwaters where spills or leaks of toxic or hazardous
materials have not occurred (unless all spilled materials have been
removed) and where detergents are not used;
(m)
Discharges from foundation or footing drains where flows are
not contaminated with process materials such as solvents, or contaminated
by contact with soils where spills or leaks of toxic or hazardous
materials have occurred;
(n)
Uncontaminated utility and vault dewatering; dechlorinated water
line testing; and
(o)
Hydrostatic test water that does not contain any treatment chemicals
and is not contaminated with process chemicals.
B.
Prohibition of illicit connections. The construction, use, maintenance
or continued existence of illicit connections to the municipal separate
storm sewer system is prohibited. 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.
A.
Suspension due to illicit discharges in emergency situations. The
authorized enforcement officer may, without prior notice, suspend
MS4 discharge access to a person when such suspension is necessary
to stop an actual or threatened nonstormwater discharge which presents
or may present imminent and substantial danger to the environment,
to the health or welfare of persons, or to the MS4 or waters of the
state. If the violator fails to comply with a suspension order issued
in an emergency, the authorized enforcement officer may take such
steps as deemed necessary to prevent or minimize damage to the MS4
or waters of the state or to minimize the danger to persons.
B.
Suspensions due to the detection of illicit discharge. Any person
discharging into the MS4 in violation of this chapter may have his
or her MS4 access terminated if such termination would abate or reduce
an illicit discharge. The authorized enforcement officer will notify
a violator of the proposed termination of its MS4 access. The violator
may petition the authorized enforcement officer for reconsideration
and a hearing. A person commits an offense if the person reinstates
MS4 access to premises terminated pursuant to this section, without
the prior approval of the authorized enforcement officer.
To the extent permitted by state law, or if authorized by the
owner or other party in control of the property, the authorized enforcement
officer, its agents, officers, and employees may enter upon privately
owned property for the purpose of performing their duties under this
chapter and may make or cause to be made such examinations, surveys
or sampling as the authorized enforcement officer deems reasonably
necessary.
Any person subject to an industrial or construction activity
RIPDES 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 authorized enforcement officer prior to
the allowing of discharges into the MS4.
The authorized enforcement officer shall be permitted, upon
the presentation of credentials and other documents as may be required
by law, to:
A.
Enter the discharger's premises where a regulated activity is
conducted or where the records must be kept as required under the
conditions of this permit;
B.
Have access to and copy, at reasonable times, any records that must
be kept as required under the conditions of the permit;
C.
Inspect at reasonable times any equipment, practices, or operations
regulated or required under this permit; and
D.
Sample or monitor any substances or parameters at any location, at
reasonable times, for the purposes of assuring permit compliance or
as otherwise authorized by the Clean Water Act or Rhode Island law.
In an attempt to prevent, control, and reduce stormwater pollutants,
any person engaged in activities or operations, or owning facilities
or property which will or may result in pollutants entering stormwater,
the storm sewer system or waters of the state shall implement best
management practices to the extent they are technologically achievable
to prevent and reduce such pollutants. The owner or operator of a
commercial or industrial establishment shall provide reasonable protection
from accidental discharge of prohibited materials or other wastes
into the municipal storm drain system or watercourses. Facilities
to prevent accidental discharge of prohibited materials or other wastes
shall be provided and maintained at the owner or operator's expense.
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 reasonably 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. The owner or lessee shall not remove
healthy bank vegetation beyond that actually necessary for maintenance,
nor remove said vegetation in such a manner as to increase the vulnerability
of the watercourse to erosion. The property owner or lessee shall
be responsible for maintaining and stabilizing that portion of the
watercourse that is within his or her property lines in order to protect
against erosion and degradation of the watercourse originating or
contributed from his or her property. Nothing in this section shall
preclude any owner/lessee from compliance with relevant provisions
of the Rhode Island Freshwater Wetlands Act, R.I.G.L. § 2-1-18
et seq., or other applicable laws or regulations.
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 unauthorized discharges or pollutants discharging into stormwater,
the storm drain system, or waters of the state from said facility,
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 a hazardous material said person shall immediately notify emergency
response officials of the occurrence via emergency dispatch services
(911). In the event of a release of nonhazardous materials, said person
shall notify the authorized enforcement officer no later than the
next business day. Notifications in person or by telephone shall be
confirmed by written notice addressed and mailed to the authorized
enforcement officer within 14 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. Nothing in this section shall preclude any
owner/lessee from compliance with relevant provisions of the Rhode
Island Clean Water Act, R.I.G.L. § 46-12-1 et seq., or other
applicable laws or regulations.
A.
Whenever the authorized enforcement officer finds that any person
has violated a prohibition or failed to meet a requirement of this
chapter, the authorized enforcement officer may order compliance by
written notice of violation to the responsible person. Such notice
may require, without limitation:
(1)
The performance of monitoring, analyses, and reporting;
(2)
The elimination of illicit connections or discharges;
(3)
That violating discharges, practices, or operations shall cease and
desist;
(4)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property; and
(5)
Payment of a fine to cover administrative and remediation costs;
and
(6)
The implementation of source control or treatment BMPs.
B.
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.
A.
Appeal of notice of violation. Any person receiving a notice of violation
may appeal the determination of the authorized enforcement officer
to the Chief of Staff. The notice of appeal must be received within
20 days from the date of the receipt of the notice of violation. The
notice of appeal shall be in writing and contain a detailed basis
upon which the appeal was taken. The procedure for said appeal shall
be in conformity with the Administrative Procedures Act, R.I.G.L.
§ 42-35-1 et seq.
B.
Settlements of appeal of notice of violation. In lieu of enforcement
proceedings, penalties, and remedies authorized by this chapter, the
authorized enforcement officer may enter into a negotiated settlement
to resolve the appeal of the notice of violation. Such settlement
may impose upon a violator alternative compensatory actions such as
storm drain stenciling, attendance at compliance workshops, creek
cleanup, and the like.
C.
Enforcement measures after appeal. If no timely appeal of a notice
of violation has been taken and 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 10 days of the decision of the
municipal authority upholding the decision of the authorized enforcement
officer, then representatives of the authorized enforcement officer
shall undertake all necessary actions, including requesting injunctive
relief through the Superior Court, to enter upon the subject private
property and take any and all measures necessary to abate the violation
and/or restore the property.
The authorized enforcement officer is authorized to issue the
following administrative orders at any time he deems such action appropriate
to secure timely and effective compliance with this chapter or a discharge
permit or order issued pursuant to this chapter, whether or not any
previous notifications of violation have been provided to the user:
A.
Cease and desist order. The authorized enforcement officer may issue
an order to cease and desist a violation or an action or inaction
which threatens a violation and to direct the user to comply forthwith
or to take such appropriate remedial or preventive action as may be
needed to properly address the violation or threatened violation,
including halting operations and terminating the discharge.
B.
Compliance order. The authorized enforcement officer may issue an
order requiring a user to provide within a specified period of time,
such treatment, pretreatment or discharge control facilities or related
appurtenances as are necessary to correct a violation or to prevent
a threatened violation. A compliance order may also direct that a
user provide improved operation and maintenance of existing discharge
facilities, conduct additional self-monitoring or submit appropriate
reports or management plans.
C.
Show cause order. The authorized enforcement officer may issue an
order to show cause why a proposed enforcement action should not be
taken. Notice shall be served on the user specifying the time and
place for a meeting, the proposed enforcement action and the reasons
for such action, and a request that the user show cause why the proposed
enforcement action should not be taken. Whether or not a duly notified
user appears as noticed, additional enforcement action may be initiated.
D.
Consent order. The authorized enforcement officer may enter into
consent orders, assurances of voluntary compliance, or other similar
documents establishing an agreement with a user. Such orders shall
include specific actions to be taken by the user and specific time
frames to correct a violation or to remove the threat of a violation.
Within 15 days after abatement of the violation, by or under
the direction of the authorized enforcement officer, the owner of
the property will be notified by the enforcement officer or municipality
of the cost of abatement, including administrative costs. If the amount
due is not paid within a timely manner as determined by the enforcement
agency or municipality, 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 section shall become liable to the Town by reason of such
violation. The liability shall be paid in not more than 12 equal payments.
Interest at the rate of 12% per annum shall be assessed on the balance
beginning on the thirty-first day following discovery of the violation.
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 authorized enforcement officer may petition for a temporary,
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.
Violations deemed a public nuisance. 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.
B.
Criminal prosecution. Any person who has violated or continues to
violate this chapter shall be liable to criminal prosecution to the
fullest extent of the law and shall be subject to a criminal penalty
of $500 per violation per day and/or imprisonment for a period of
time not to exceed 15 days. The authorized enforcement officer may
recover all attorney's fees, court costs and other expenses associated
with enforcement of this chapter, including sampling and monitoring
expenses.
C.
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 it is within the discretion of the authorized
enforcement officer to seek cumulative remedies.
