[HISTORY: Adopted by the Town Council of the Town of Portsmouth
as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-28-2008 by Ord. No. 2008-04-28]
Increased and contaminated stormwater runoff is a major cause
of impairment of water quality and flow in lakes, ponds, streams,
rivers, wetlands and groundwater; contamination of drinking water
supplies; alteration or destruction of aquatic and wildlife habitat;
and flooding. The purpose of this article is to provide for the health,
safety, and general welfare of the citizens of Portsmouth through
the regulation of nonstormwater discharges to the municipal storm
drainage system (MS4) to the maximum extent practicable as required
by federal and state law. The objectives of this article are:
A.
To prevent (or reduce to the maximum extent practicable) pollutants
entering Portsmouth's municipal separate storm sewer system (MS4);
B.
To prohibit illicit connections and unauthorized discharges to the
MS4;
C.
To require the physical removal of all such illicit connections and
discharges;
D.
To comply with state law and federal statutes and regulations relating
to stormwater discharges; and
E.
To set forth the legal authority and procedures to carry out all
inspection, monitoring and enforcement activities necessary to ensure
compliance with this article.
This article is promulgated pursuant to and consistent with
the Federal Clean Water Act (33 U.S.C. § 1251 et seq.),
the Rhode Island Department of Environmental Management's (RIDEM)
General Permit - Rhode Island Pollutant Discharge Elimination System
Stormwater Discharge from Small Municipal Separate Storm Sewer Systems
and from Industrial Activity at Eligible Facilities Operated by Regulated
Small MS4s, and in accordance with the Administrative Procedures Act,
R.I.G.L. § 42-35-1 et seq.
As used in this article, the following terms shall have the
meanings indicated:
Discharges not comprised of stormwater are allowed under
the MS4 general permit but are limited to the following, provided
these are not deemed significant contributors of pollutants to the
MS4 by the DPW Director: discharges which result from the washdown
of vehicles at retail dealers selling new and used automobiles where
no detergents are used and individual residential car or boat washing;
external building washdown where no detergents are used; the use of
water to control dust; fire-fighting activities; fire hydrant flushings;
natural springs; uncontaminated groundwater; dechlorinated pool discharges;
air-conditioning condensate; lawn watering; potable water sources,
including waterline flushings; irrigation drainage; pavement wash
waters 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; 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; uncontaminated
utility vault dewatering; dechlorinated waterline testing water; hydrostatic
test water that does not contain any treatment chemicals and is not
contaminated with process chemicals.
Portsmouth Department of Public Works.
BMPs are 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.
The Director of the Portsmouth Department of Public Works
or his designee.
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 discharge to a municipal separate storm sewer system
(MS4) that is not composed entirely of stormwater, except:
Either of the following:
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 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 agency; or
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
agency.
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 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 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, articles, 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;
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 a RIPDES permit,
or an allowable stormwater discharge found to be a significant contributor
of pollutants to the MS4.
A three-member board appointed by the Town Council to hear
appeals of the DPW Director's actions in the administration of
this article.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
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 water and groundwater within the boundaries of the
State of Rhode Island and subject to its jurisdiction.
No person/owner/operator shall discharge or cause to be discharged into the municipal separate storm sewer system (MS4) or watercourses any pollutant (See definition in § 336-3.) or nonstormwater discharge (See definition in § 336-3.), unless such a nonstormwater discharge is outlined in Part I.B.3 of the MS4 general permit, also known as "allowable nonstormwater discharges." (See definition in § 336-3.)
A.
The construction, use, maintenance or continued existence of illicit connections (See definition § 336-3.) to the municipal separate storm sewer system (MS4) 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.
B.
A person/owner/operator is considered to be in violation of this article if he/she constructs, uses, maintains or provides for the continued existence of a direct connection conveying an illegal discharge (See definition in § 336-3.) to the MS4 and must provide corrective action to eliminate said direct connection.
No person/owner/operator shall throw, deposit, leave, maintain,
keep or permit to be thrown, deposited, left or maintained, in or
upon any public or private property, driveway, parking area, street,
alley, sidewalk, component of the storm drain system or waters of
the state, any refuse, rubbish, garbage, litter or other discarded
or abandoned objects, articles, and accumulations so that the same
may cause or contribute to an illicit discharge into the MS4. Wastes
deposited in streets in proper waste receptacles for the purposes
of collection are exempted from this prohibition.
A.
Suspension due to illicit discharges in emergency situations. The
DPW Director may, without prior notice, suspend MS4 discharge access
to a person/owner/operator when such suspension is, as determined
by the DPW Director, necessary to stop an actual or threatened nonstormwater
discharge which presents or may present imminent and substantial danger
to the environment or to the health or welfare of persons or to the
MS4 or waters of the state. The DPW Director shall immediately notify
the RIDEM Office of Compliance and Inspection of this suspension activity.
If the violator fails to comply with a suspension order issued in
an emergency, the Portsmouth Department of Public Works may take such
steps as deemed necessary to prevent or minimize damage to the MS4
or waters of the state or to minimize danger to persons.
B.
Suspension due to the detection of illicit discharge. Any person/owner/operator discharging to the MS4 in violation of this article may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The DPW Director will notify a violator of the proposed termination of its MS4 access. The violator may petition the Stormwater Appeals Board for reconsideration and a hearing, per the provisions of § 336-12 herein. A person/owner/operator commits an offense if he/she reinstates MS4 access to premises terminated pursuant to this subsection without the prior written approval of the DPW Director.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
A.
Requirement to eliminate illegal discharges. The DPW Director, or
his designee, may require by written notice that a person responsible
for an illegal discharge immediately, or by a specified date not less
than 30 days nor more than 90 days from the date of notice, discontinue
the discharge and, if necessary, take measures to eliminate the source
of the discharge to prevent the occurrence of future illegal discharges.
B.
Requirement to eliminate or secure approval for illicit connections.
The DPW Director may require by written notice that a person/owner/operator
responsible for an illicit connection to the storm drain system comply
with the requirements of this section to eliminate the connection
by a specified date not less than 30 days nor more than 90 days from
the date of notice, regardless of whether or not the connection or
discharges to it had been established or approved prior to the effective
date of this article. If, subsequent to eliminating a connection found
to be in violation of this article, the responsible person/owner/operator
can demonstrate that illegal discharges will no longer occur, said
person/owner/operator may request the DPW Director's approval
to reconnect. The reconnection or reinstallation of the connection
shall be at the responsible party's expense.
C.
Requirement to remediate. Whenever the DPW Director finds that a
discharge of pollutants is taking place or has occurred which will
result in or has resulted in pollution of stormwater, the storm drain
system (MS4) or waters of the state, the DPW Director may require
by written notice to the owner of the property and/or the responsible
party that the pollution be remediated and the affected property be
restored at the owner's expense.
D.
Requirement to monitor and analyze. The DPW Director may require
by written notice of requirement that any person/owner/operator engaged
in any commercial or industrial activity and/or owning or operating
any facility which may cause or contribute to stormwater pollution,
illegal discharges, and/or nonstormwater discharges to the storm drain
system (MS4) or waters of the state shall undertake at said person's/owner's/operator's
expense such monitoring and analyses and furnish such reports to the
DPW Director as deemed necessary to determine compliance with this
article.
E.
Industrial and construction activity discharge. Any person/owner/operator
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 DPW Director prior to the allowing of discharges to the MS4.
F.
Requirement to prevent, control, and reduce stormwater pollutants.
In an attempt to prevent, control, and reduce stormwater pollutants,
any person/owner/operator engaged in activities or operations or owning
facilities or property which will or may result in pollutants entering
stormwater, the storm sewer system (MS4) 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 (MS4) or watercourses.
Facilities to prevent accidental discharge of prohibited materials
or other wastes shall be provided and maintained at the owner's or
operator's expense.
G.
Watercourse protection. Every person owning property through which a watercourse (See definition § 336-3.) passes 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 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 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 shall be responsible for maintaining and stabilizing that portion of the watercourse that is within their property lines in order to protect against erosion and degradation of the watercourse originating or contributed from their property. Nothing in this subsection shall preclude any owner from compliance with relevant provisions of the Rhode Island Fresh Water Wetlands Act, R.I.G.L. § 2-1-18 et seq., or other applicable laws or regulations.
H.
Notification of spills. Notwithstanding other requirements of law,
as soon as any person/owner/operator 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 stormwater, the storm drain system, or waters of
the state from said facility, said person/owner/operator 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 the Portsmouth Fire Department
of the occurrence via emergency dispatch services (911). In the event
of a release of nonhazardous materials, said person/owner/operator
shall notify the DPW Director no later than the next business day.
Notifications in person or by phone shall be confirmed by written
notice addressed and mailed to the authorized enforcement agency within
five business days of the phone notice. If the discharge of prohibited
materials emanates from a commercial or industrial establishment,
the owner or operator of such establishment shall also retain an on-site
written record of the discharge and the actions taken to prevent its
recurrence. Such records shall be retained for at least three years.
Nothing in this subsection 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.
To the extent permitted by state law, or if authorized by the owner
or other party in control of the property, the Portsmouth Department
of Public Works, its agents, officers, and employees may enter upon
privately owned property for the purpose of performing their duties
under this article and may make or cause to be made such examinations,
surveys or sampling as the authorized enforcement agency deems reasonably
necessary.
The DPW Director, or his designee, shall be permitted, upon
the presentation of credentials and other documents as may be required
by law, to:
A.
Enter the dischargers premise(s) where a regulated activity is conducted
or where 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 at any location, at reasonable times,
for the purposes of assuring compliance with this article or as otherwise
authorized by Rhode Island law.
A.
Whenever the DPW Director finds that any person/owner/operator has
violated a prohibition or failed to meet a requirement of this article,
the Portsmouth Department of Public Works 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;
(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
are 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 the Portsmouth
DPW or a designated subcontractor, and the expense thereof shall be
charged to the violator. All notices shall be written and sent by
registered mail, return receipt requested, except as otherwise provided
herein.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
Any person/owner/operator receiving a notice of violation may
appeal the determination of the DPW Director. The notice of appeal
must be received within 15 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. Hearing
on the appeal before the Stormwater Appeals Board shall take place
within 30 days of the receipt of the notice of appeal. The procedure
for said appeal shall be in conformity with the Administrative Procedures
Act, R.I.G.L. § 42-35-1 et seq.
In lieu of enforcement proceedings, penalties, and remedies
authorized by this article, the DPW Director may enter into a negotiated
settlement to resolve the appeal of the notice of violation. Such
settlement may impose upon a violator alternative compensatory action,
such as storm drain stenciling, attendance at compliance workshops,
creek cleanup, etc.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
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 15 days of the decision of the Stormwater Appeals Board upholding
the decision of the DPW Director, representatives of the Portsmouth
Department of Public Works 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.
A.
If abatement activities are required and undertaken by the Town,
within 60 days after abatement of the violation by the Town, the DPW
Director shall notify the property owner of the cost of abatement,
including administrative costs. The property owner may file a written
protest objecting to the amount of the assessment with the Town Clerk
within 15 days. The Town Clerk shall set the matter for public hearing
by the Town Council. The decision of the Town Council shall be set
forth by resolution and shall be final.
B.
If the amount due is not paid within 30 days of the decision of the
Town Council or the expiration of the time in which to file an appeal
under this section, the charges shall become a special assessment
against the property and shall constitute a lien on the property for
the amount of the assessment, plus accrued interest, to be paid upon
satisfaction of said lien. A copy of the resolution shall be turned
over to the Tax Assessor so that the auditor may enter the amounts
of the assessment against the parcel as it appears on the current
assessment roll, and the Tax Collector shall include the amount of
the assessment on the bill for taxes levied against the parcel of
land.
It shall be unlawful for any person/owner/operator to violate
any provision or fail to comply with any of the requirements of this
article. If a person/owner/operator has violated or continues to violate
the provisions of this article, the DPW Director may petition for
a temporary, preliminary or permanent injunction restraining the person/owner/operator
from activities which would create further violations or compelling
the person/owner/operator 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, is declared and deemed a nuisance by the Town, 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.
A.
It shall be the duty of the Town Solicitor, on authorization by the
Town Council whenever a violation of this article is brought to its
attention by the DPW Director, to institute due legal proceedings
to compel compliance with this article and to prohibit any illegal
discharge to the MS4 or maintenance of any illicit connection to the
MS4 in violation of the provisions of this article.
B.
The Town may also cause suit to be brought in the Supreme or Superior
Court, or any Municipal Court, in the name of the Town, to restrain
the violation of, or to compel compliance with, the provisions of
this article. The Town may consolidate an action for injunctive relief
and/or fines under this article in the Superior Court and may recover
all attorneys' fees, court costs and other expenses associated
with enforcement of this article, including sampling and monitoring
expenses.
C.
Any person/owner/operator who shall violate or assist in the violation
or fail to comply with the requirements of any provision of this article,
or for a violation of any terms or conditions of any action imposed
by the DPW Director or any other agency or officer charged in this
article with enforcement of any of its provisions, upon conviction
thereof, shall be punishable by a fine of not more than $500 for each
offense, and each day of the existence of any such violation shall
be deemed a separate offense, and all such fines shall inure to the
benefit of the Town.
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 Town of Portsmouth to
seek cumulative remedies.
