[HISTORY: Adopted by the Town Board of the Town of Montgomery 6-5-2008 by L.L. No.
2-2008. Amendments noted where applicable.]
A.
The purpose
of this chapter is to provide for the health, safety, and general
welfare of the citizens of the Town of Montgomery 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 chapter 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 chapter are to:
(1)
Meet the requirements of the SPDES General Permit for Stormwater
Discharges from MS4s, Permit No. GP-02-02 or as amended or revised;
(2)
Regulate the contribution of pollutants to the MS4 since such systems
are not designed to accept, process or discharge nonstormwater wastes;
(3)
Prohibit illicit connections, activities and discharges to the MS4;
(4)
Establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
chapter; and
(5)
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.
B.
This chapter
is adopted pursuant to § 10 of the Municipal Home Rule Law.
Whenever used in this chapter, unless a different meaning is
stated in a definition applicable to only a portion of this chapter,
the following terms will have meanings set forth below:
Schedules of activities, prohibitions of practices, general
good house keeping 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.
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 § 193-6 of this chapter.
Activities requiring the SPDES permit for discharges from
industrial activities except construction, GP-98-03, as amended or
revised.
Municipal separate storm sewer system.
A conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters,
ditches, man-made channels, or storm drains):
The Town of Montgomery.
Any discharge to the MS4 that is not composed entirely of
stormwater.
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.
Discharge compliance with water quality standards. The condition
that applies where a municipality has been notified that the discharge
of stormwater authorized under their MS4 permit may have caused or
has the reasonable potential to cause or contribute to the violation
of an applicable water quality standard. Under this condition, the
municipality must take all necessary actions to ensure future discharges
do not cause or contribute to a violation of water quality standards.
303(d) Listed waters. The condition in the municipality's
MS4 permit that applies where the MS4 discharges to a 303(d) listed
water. Under this condition the stormwater management program must
ensure no increase of the listed pollutant of concern to the 303(d)
listed water.
Total maximum daily load (TMDL) strategy. The condition in the
municipality's MS4 permit where a TMDL including requirements
for control of stormwater discharges has been approved by EPA for
a water body or watershed into which the MS4 discharges. If the discharge
from the MS4 did not meet the TMDL stormwater allocations prior to
September 10, 2003, the municipality was required to modify its stormwater
management program to ensure that reduction of the pollutant of concern
specified in the TMDL is achieved.
The condition in the municipality's MS4 permit that applies
if a TMDL is approved in the future by EPA for any water body or watershed
into which an MS4 discharges. Under this condition, the municipality
must review the applicable TMDL to see if it includes requirements
for control of stormwater discharges. If an MS4 is not meeting the
TMDL stormwater allocations, the municipality must, within six months
of the TMDL's approval, modify its stormwater management program
to ensure that reduction of the pollutant of concern specified in
the TMDL is achieved.
A permit issued by the Department 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 Montgomery to enforce this chapter. The
SMO may also be designated by the municipality to accept and review
stormwater pollution prevention plans, forward the plans to the applicable
municipal board and inspect stormwater management practices.
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 § 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.
Water that is not stormwater, is contaminated with pollutants
and is or will be discarded.
This chapter shall apply to all water entering the MS4 generated
on any developed and undeveloped lands unless explicitly exempted
by an authorized enforcement agency.
The Stormwater Management Officer(s) [SMO(s)] shall administer,
implement, and enforce the provisions of this chapter. 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
municipality.
The provisions of this chapter are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this chapter or
the application thereof to any person, establishment, or circumstances
shall be held invalid, such invalidity shall not affect the other
provisions or application of this chapter.
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). The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions established
by this chapter, unless the Department or the municipality has determined
them to be substantial contributors of pollutants: waterline 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 footing 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 firefighting 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, 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 chapter.
(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.
(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 chapter if the
person connects a line conveying sewage to the municipality's
MS4, or allows such a connection to continue.
A.
Activities that are subject to the requirements of this section are
those types of activities that:
(1)
Cause or contribute to a violation of the municipality's MS4
SPDES permit.
B.
Upon notification to a person that he or she is engaged in activities
that cause or contribute to violations of the municipality'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 municipality's MS4 SPDES
permit authorization.
A.
Best management practices. Where the SMO has identified illicit discharges as defined in § 193-2 or activities contaminating stormwater as defined in § 193-7, the municipality may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
(1)
The owner or operator of a commercial or industrial establishment
shall provide, at their own expense, reasonable protection from accidental
discharge of prohibited materials or other wastes into the MS4 through
the use of structural and nonstructural BMPs.
(2)
Any person responsible for a property or premises, which is, or may be, the source of an illicit discharge as defined in § 193-2 or an activity contaminating stormwater as defined in § 193-7, 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.
(3)
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 section.
Illicit discharges in emergency situations:
A.
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 discharge. Any person
discharging to the municipality's MS4 in violation of this chapter
may have their 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 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 section, 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 municipality 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 chapter, 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 chapter.
B.
Access to facilities.
(1)
The SMO shall be permitted to enter and inspect facilities subject
to regulation under this chapter as often as may be necessary to determine
compliance with this chapter. 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 chapter.
(3)
The municipality shall have the right to set up on any facility subject
to this chapter 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 municipality has the right to require the facilities subject
to this chapter to install monitoring equipment as is reasonably necessary
to determine compliance with this chapter. 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 municipality access to a facility
subject to this chapter is a violation of this chapter. A person who
is the operator of a facility subject to this chapter commits an offense
if the person denies the municipality reasonable access to the facility
for the purpose of conducting any activity authorized or required
by this chapter.
(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 chapter,
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 chapter or any order issued hereunder, then the SMO may seek
issuance of a search warrant from any court of competent jurisdiction.
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. In the
event of a release of nonhazardous materials, said person shall notify
the municipality 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 municipality
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. When the municipality's SMO finds that
a person has violated a prohibition or failed to meet a requirement
of this chapter, he/she may order compliance by written notice of
violation to the responsible person. Such notice may require without
limitation:
(1)
The elimination of illicit connections or discharges;
(2)
That violating discharges, practices, or operations shall cease and
desist;
(3)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(4)
The performance of monitoring, analyses, and reporting;
(5)
Payment of a fine; and
(6)
The implementation of source control or treatment BMPs. 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 chapter
shall be guilty of a violation punishable by a fine not exceeding
$350 or imprisonment for a period not to exceed six months, or both
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 not less than $350 nor more than $700 or imprisonment for
a period not to exceed six months, 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 not less than $700 nor
more than $1,000 or imprisonment for a period not to exceed six months,
or both. However, for the purposes of conferring jurisdiction upon
courts and judicial officers generally, violations of this chapter
shall be deemed misdemeanors and for such purpose only all provisions
of law relating to misdemeanors shall apply to such violations. 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 of Montgomery Town Board within 15 days of
its issuance, which shall hear the appeal within 30 days after the
filing of the appeal, and, within five days of making its decision,
file its decision in the office of the Municipal Clerk 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 municipal authority
upholding the decision of the SMO, then the SMO shall request the
owner's permission for access to 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 warrant in a court of competent jurisdiction to be authorized to
enter upon the property to determine whether a violation has occurred.
Upon determination that a violation has occurred, the SMO may seek
a court order to take any and all measures reasonably necessary to
abate the violation and/or restore the property. The cost of implementing
and maintaining such measures shall be the sole responsibility of
the discharger.
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 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.
A.
Where
a person has violated a provision of this chapter, he/she may be eligible
for alternative remedies in lieu of a civil penalty, upon recommendation
of the Municipal Attorney and concurrence of the Municipal Code Enforcement
Officer, where:
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.
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
agency to seek cumulative remedies.
