[Ord. of 10-4-10, § 1]
The purpose of this article is to provide for the health, safety,
and general welfare of the residents of Durham through the regulation
of nonstormwater discharges to the storm drainage system to the maximum
extent practicable as required by federal and state law. This article
establishes methods for controlling the introduction of pollutants
into the storm drainage system in order to comply with requirements
of the National Pollutant Discharge Elimination System (NPDES) permit
process. The objectives of this article are:
(1)
To regulate the contribution of pollutants to the storm drainage
system through stormwater discharges by any user.
(2)
To prohibit illicit connections and discharges to the storm drainage
system.
(3)
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
article.
[Ord. of 10-4-10, § 2]
For the purposes of this article, the following shall mean:
Schedules of activities, prohibition 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 subject to NPDES construction permits. Currently
these include construction projects resulting in land disturbance
of five acres or more. Beginning in March 2003, NPDES stormwater phase
II permits have been 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 building, lot, parcel of land, or portion of land whether
improved or unimproved, including adjacent sidewalks and parking strips.
The Durham First Selectman or his/her authorized 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.
The person designated from time to time as a citation hearing officer under § 1-12 (or any successor provision) of the Code of Ordinances of the Town of Durham.
Any direct or indirect nonstormwater discharge to the storm drain system, except as exempted in § 16-87 of this article.
The following: 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 the First Selectman; 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 the First Selectman or other public official or body
having jurisdiction thereof.
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26(b)(14).
A permit issued by EPA [or by a state under authority delegated
pursuant to 33 U.S.C. § 1342(b)] that authorizes the discharge
of pollutants to waters of the United States, whether the permit is
applicable on an individual, group, or general area-wide basis.
Any discharge to the storm drain system that is not composed
entirely of stormwater.
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;
and noxious or offensive matter of any kind.
The publicly-owned facilities by which stormwater is collected
and/or conveyed, including but not limited to any roads with drainage
systems, municipal streets, gutters, curbs, inlets, piped storm drains,
pumping facilities, retention and detention basins, natural and human-made
or altered drainage channels, reservoirs, and other drainage structures.
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
A document that describes the best management practices and
activities to be implemented by a person or business to identify sources
of pollution or contamination at a site and the actions to eliminate
or reduce pollutant discharges to stormwater, stormwater conveyance
systems, and/or receiving waters to the maximum extent practicable.
Any water or other liquid, other than uncontaminated stormwater,
discharged from a facility.
A permanent or intermittent stream or other body of water,
either natural or man-made, which gathers or carries surface water.
This includes but is not limited to lakes, ponds, rivers, streams
and any other surface water defined as a watercourse by the Town's
inland wetland regulations.
[Ord. of 10-4-10, § 3]
This article shall apply to all water entering the storm drain
system generated on any developed and undeveloped lands unless explicitly
exempted by the First Selectman or other public official or body having
jurisdiction thereof.
[Ord. of 10-4-10, § 4]
The First Selectman shall, in consultation with the Town Engineer,
administer, implement, and enforce the provisions of this article.
The First Selectman may delegate his/her powers and duties under this
article to an authorized designee.
[Ord. of 10-4-10, § 5]
The provisions of this article are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this article 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 article.
[Ord. of 10-4-10, § 6]
The standards set forth herein and promulgated pursuant to this
article are minimum standards; therefore this article does not intend
nor imply that compliance by any person will ensure that there will
be no contamination, pollution, nor unauthorized discharge of pollutants.
[Ord. of 10-4-10, § 7]
(a)
Prohibition of illegal discharges. No person shall discharge or cause
to be discharged into the storm drainage system 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.
The commencement, conduct or continuance of any illegal discharge
to the storm drainage system is prohibited except as described as
follows:
(1)
The following discharges are exempt from discharge prohibitions
established by this article: water line flushing or other potable
water sources, landscape irrigation or lawn watering, diverted stream
flows, rising groundwater, groundwater infiltration to storm drains,
uncontaminated pumped groundwater, foundation or footing drains (not
including active groundwater dewatering systems), crawl space pumps,
air conditioning condensation, springs, noncommercial washing of vehicles,
natural riparian habitat or wet-land flows, swimming pools (if dechlorinated
- typically less than one PPM chlorine), fire fighting activities,
and any other water source not containing pollutants.
(2)
Discharges specified in writing by the First Selectman as being
necessary to protect public health and safety.
(3)
Dye testing is an allowable discharge, but requires a written
notification to the First Selectman prior to the time of the test.
Said written notification may be in the form of electronic mail, facsimile
transmission or hard copy letter format.
(4)
The prohibition shall not apply to any nonstormwater discharge
permitted under an NPDES permit, waiver, or waste discharge order
issued to the discharger and administered under the authority of the
Federal Environmental Protection Agency, 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 storm drain
system.
(b)
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence of
illicit connections to the storm drain system 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 storm drainage
system, or allows such a connection to continue.
[Ord. of 10-4-10, § 8]
Suspension due to illicit discharges in emergency situations.
The First Selectman may, without prior notice, suspend storm drainage
system 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, or to the health
or welfare of persons, or to the storm drainage system or waters of
the United States. If the violator fails to comply with a suspension
order issued in an emergency, the First Selectman may take such steps
as deemed necessary to prevent or minimize damage to the storm drainage
system or waters of the United States, or to minimize danger to persons.
Suspension due to the detection of illicit discharge. Any person
discharging to the storm drainage system in violation of this article
may have their storm drainage system access terminated if such termination
would abate or reduce an illicit discharge. The First Selectman will
notify a violator of the proposed termination of its storm drainage
system access. The violator may petition the First Selectman for reconsideration
and hearing.
A person commits an offense if the person reinstates storm drainage
system access to premises terminated pursuant to this section, without
the prior approval of the First Selectman.
[Ord. of 10-4-10, § 9]
Any person subject to an industrial or construction activity
NPDES 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 First Selectman prior to the allowing
of discharges to the storm drainage system.
[Ord. of 10-4-10, § 10]
(a)
Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial or construction activity, and
any other commercial or residential facilities that discharge stormwater
to the storm drainage system.
(b)
Access to facilities.
(1)
The First Selectman 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 representatives
or designees of the First Selectman.
(2)
Facility operators shall allow the First Selectman ready access
to all parts of the facility for the purposes of inspection, sampling,
examination and copying of records that must be kept under the conditions
of a Town, state or federal NPDES permit to discharge stormwater,
and the performance of any additional duties as defined by state and
federal law.
(3)
The First Selectman shall have the right to set up on any NPDES
permitted facilities such devices as are necessary in the opinion
of the First Selectman to conduct monitoring and/or sampling of the
facility's stormwater discharge.
(4)
The First Selectman has the right to require the installation
of sampling and monitoring equipment on any NPDES permitted facility
by the discharger at its own expense. 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)
Any temporary or permanent obstruction to safe and easy access
to the facility to be inspected and/or sampled shall be promptly removed
by the operator at the written or oral request of the First Selectman
and shall not be replaced. The costs of clearing such access shall
be borne by the operator.
(6)
Unreasonable delays in allowing the First Selectman access to
a permitted facility is a violation of a stormwater discharge permit
and of this article. A person who is the operator of a facility with
a NPDES permit to discharge stormwater associated with industrial
activity commits an offense if the person denies the First Selectman
reasonable access to the permitted facility for the purpose of conducting
any activity authorized or required by this article. If the First
Selectman has been refused access to any part of the facility 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, or to protect the overall
public health, safety, and welfare of the community, then the First
Selectman may seek issuance of a search warrant from any court of
competent jurisdiction.
(7)
While performing the necessary work on private properties referred
to in Subsections (b)(1) through (5) of this section, the First Selectman
shall observe all safety rules applicable to the premises established
by the facility.
[Ord. of 10-4-10, § 11]
The First Selectman will adopt requirements identifying best
management practices for any activity, operation, or facility which
may cause or contribute to pollution or contamination of stormwater,
the storm drainage system, or waters of the United States. 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 storm drainage system
or watercourses through the use of these structural and nonstructural
BMPs. Further, any person responsible for a property or facility,
which is, or may be, the source of an illicit discharge, may be required
to implement, at said person's expense, additional structural and
nonstructural BMPs to prevent the further discharge of pollutants
to the storm drainage system as directed by the First Selectman. Compliance
with all terms and conditions of a valid NPDES permit authorizing
the discharge of stormwater associated with industrial or construction
activity, to the extent practicable, shall be deemed compliance with
the provisions of this section. These BMPs shall be part of a stormwater
pollution prevention plan (SWPP) as necessary for compliance with
requirements of the NPDES permit.
[Ord. of 10-4-10, § 12]
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 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.
[Ord. of 10-4-10, § 13]
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 stormwater, the
storm drainage system, or water of the United States 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 (e.g.,
911 or similar emergency telephone numbers). In the event of a release
of nonhazardous materials, said person shall notify the First Selectman
in person or by phone, electronic mail or facsimile no later than
the next business day. Notifications in person or by phone shall be
confirmed by written notice addressed and mailed to the First Selectman
within three 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.
[Ord. of 10-4-10, § 14]
(a)
Notice of violation. Whenever the First Selectman finds that a person
has violated a prohibition or failed to meet a requirement of this
article, he/she shall 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 discharges or connections;
(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)
The implementation of source control or treatment BMPs.
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 First Selectman may order the work be
done by a designated governmental agency or a contractor and the violator
fined an amount equal to the expense thereof, in addition to any fines
imposed in Subsection (b) or (c) of this section.
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(b)
Procedure for issuance of citations.
(1)
The First Selectman shall issue a written notice to any person
who violates any provision of this article. No written notice may
be issued against the state or any state official or state employee
acting within the scope of his employment. Such written notice shall
explain the nature of the violation and the steps required for compliance,
and shall allow a seventy-two-hour period within which to correct
the violation or within which a written plan for correction shall
be submitted to the First Selectman, setting forth a reasonable time
period for correction of the violation as agreed upon by the First
Selectman. A written notice issued pursuant to this subsection shall
be served: 1) by hand delivery, at which time the seventy-two-hour
period shall begin; or 2) by certified mail return receipt requested
and by regular first class mail. Three business days shall be allowed
for mail delivery of the notice prior to the commencement of the seventy-two-hour
period.
(2)
Within two business days after the period for correction established
in Subsection (a) expires, the First Selectman shall re-inspect the
subject property to determine compliance.
(3)
If the violations set forth in the written notice have not been
corrected at the time of re-inspection, the First Selectman, in his/her
capacity as chief executive officer, may issue a citation and fine
of up to one $100 for each violation by hand, by certified return
receipt requested, by leaving a true and attested copy of the citation
at the usual place of abode or residence of the person in violation,
or in the case of a corporate or business entity, delivery to the
business address or the address of the statutory agent of said entity.
No such fine shall be levied against the state or any state official
or state employee acting within the scope of his employment. All citations
issued pursuant to this section shall state the violation for which
the citation is being issued, the fine imposed for the violation,
the time period within which the fine must be paid, and an address
for remittance of the fine.
(c)
Compliance periods after citation.
(1)
Any violation for which a citation is issued and which is not corrected within the time period specified in Subsection (b) of this section shall be a new violation of this article, and every twenty-four-hour period thereafter in which the violation is not corrected shall constitute a new violation. The citation shall include a notice to the alleged violator that each twenty-four-hour period of noncompliance after the time period specified in § 16-94(b) shall constitute a new violation and a new fine of up to $100.
(2)
The First Selectman shall not be responsible for a daily re-inspection.
Rather, the person to whom the citation has been issued shall be responsible
for reporting subsequent compliance by way of written report to the
First Selectman. The First Selectman shall re-inspect to confirm compliance
within one business day of receipt of such report.
(d)
Payment of fines.
(1)
All fines imposed under this article which are uncontested shall
be made payable to the Town of Durham and shall be received by the
First Selectman within 10 calendar days from date of notice of the
citation. All fines collected by the First Selectman shall be deposited
into the Town of Durham General Fund.
[Ord. of 10-4-10, § 15]
(a)
If the First Selectman issues a notice of violation, the First Selectman
shall send written notice of action and a statement of the right to
an appeal to the facility operator or facility owner.
(b)
The facility operator or facility owner may appeal a notice of violation
to the First Selectman by setting forth in writing the reasons for
the appeal within 15 calendar days after date of the notice of violation.
(c)
The facility operator or facility owner may appeal the decision of
the First Selectman to the hearing officer as follows:
(1)
The facility operator or facility owner may file a written request
for a review by paying an appeal fee of $25 and setting forth the
reasons for the appeal within 20 calendar days after the date of notification
of the decision from the First Selectman. Appeal fees shall be returned
to the appealing facility operator or facility owner if the appeal
is upheld.
(2)
The hearing officer shall conduct a hearing within 30 calendar
days of the receipt of the request. The hearing shall be informal
in nature. The person requesting the hearing may testify concerning
the facts, circumstances and nature of his/her appeal and may present
supporting documentation. The hearing officer shall render a written
decision within 15 calendar days of the hearing. The decision will
affirm or reverse the decision of the First Selectman.
(d)
Filing of a request for appeal shall stay the action by the First
Selectman requiring payment of a surcharge until the hearing officer
has completed his review. If a request for appeal is not made within
the twenty-calendar day period, the action of the First Selectman
is final.
[Ord. of 10-4-10, § 16]
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 First Selectman 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.
[Ord. of 10-4-10, § 17]
In lieu of enforcement proceedings, penalties, and remedies
authorized by this article, the First Selectman may impose upon a
violator alternative compensatory action, such as storm drain stenciling,
attendance at compliance workshops, watershed cleanup, or other related
activities.
[Ord. of 10-4-10, § 18]
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.
[Ord. of 10-4-10, § 19]
Any person that has violated or continues to violate this article
shall be liable to criminal prosecution to the fullest extent of the
law. The First Selectman may recover all attorneys' fees, court costs,
and other expenses associated with enforcement of this article, including
sampling and monitoring expenses.
[Ord. of 10-4-10, § 20]
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 First Selectman to seek
cumulative remedies. Compliance with the provisions of this article
shall not be construed to deprive any other state, federal or municipal
official or agency of jurisdiction over matters within their authority
or to eliminate the requirement that permits or licenses be obtained
from any relevant official or agency.