[HISTORY: Adopted by the Town Board of the
Town of Brookhaven 1-22-2008 by L.L. No. 2-2008, effective 1-30-2008; amended in its entirety 3-22-2018 by L.L. No. 7-2018, effective 3-29-2018. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Flood damage prevention — See Ch. 33.
Grading — See Ch. 35.
Coastal erosion hazard areas — See Ch. 76.
Water resources — See Ch. 78.
Wetlands and waterways — See Ch. 81.
Zoning — See Ch. 85.
Stormwater management and erosion control — See Ch. 86.
Subdivision regulations — See Ch. SR.
The purpose of this chapter is to provide for the health, safety,
and general welfare of the residents of and general public within
the Town of Brookhaven through the regulation of non-stormwater 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 as follows:
A.
To meet the requirements of the SPDES General Permit for Stormwater
Discharges from MS4s, Permit No. GP-0-15-003 or as amended or revised;
B.
To regulate the contribution of pollutants to the MS4 since such
systems are not designed to accept, process or discharge non-stormwater
wastes;
C.
To prohibit illicit connections, activities and discharges to the
MS4;
D.
To ensure all stormwater runoff is contained on-site by approved
drainage systems or natural drainage, except where otherwise approved
by an authorized body;
E.
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
chapter; and
F.
To promote public awareness of the hazards involved in the improper
discharge of trash, yard waste, lawn chemicals, pet waste, wastewater,
grease, oil, petroleum products, cleaning products, paint products,
hazardous waste, sediment and other pollutants into the MS4.
The terms used under this chapter shall have the meanings as
set forth in this section:
Management practices designed to prevent or reduce the discharge
of pollutants directly or indirectly to stormwater, receiving waters,
or stormwater conveyance systems; 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. Such practices may include pollution prevention and educational
practices, maintenance procedures, 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 General
Permit for Stormwater Discharges from Construction Activity, GP-0-15-002,
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.
Material, including any substance, waste, or combination
thereof, which, because of its quantity, concentration, 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 surface runoff or subsurface drain or conveyance that
allows an illegal discharge to enter the MS4 or private property,
including, but not limited to:
Conveyances that allow any non-stormwater discharge including
treated or untreated sewage, process wastewater, wash water, or water
conveying solids 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
A drain or conveyance connected from a commercial or industrial
land use to the MS4 or private property, which has not been documented
in plans, maps, or equivalent records and approved by an authorized
enforcement agency.
Any direct or indirect non-stormwater discharge to the MS4, except as exempted in § 86A-5 of this chapter.
Activities requiring the SPDES Permit for Discharges from
Industrial Activities as defined by the SPDES Multi-Sector General
Permit, GP-0-12-001, as amended or revised.
A conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters,
ditches, man-made channels, or storm drains) that is owned or operated
by the Town and designed or used for collecting or conveying stormwater;
the MS4, as defined, is not a combined sewer or part of a publicly
owned treatment works (POTW) as defined at 40 CFR 122.2.
Any discharge, through overland flow or direct conveyance,
to the MS4 that is not composed entirely of stormwater.
Any individual, owner, lease holder, entity, corporation,
agent, company, parent company, subsidiary, limited-liability company,
substantially owned affiliated entity, successor, partnership, joint
venture, association, legal representative, agent, or any other form
of doing business.
A substance that may cause or might reasonably be expected
to cause pollution of the waters of the state in contravention of
the standards, including, but not limited to: 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, soil, industrial, municipal or agricultural waste, and ballast
discharged into water.
Sediment or a water quality measurement that addresses sediment
(such as total suspended solids, turbidity or siltation) or any other
pollutant, including, but not limited to, nitrogen, phosphorus or
pathogens, that have been identified as a cause of impairment to any
water body that will receive a discharge from the land development
activity.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Any individual, group of individuals, company or corporation
having certain rights and duties over the property.
NYSDEC-published list, and any amendments thereto, of all
surface waters in the state for which beneficial uses of the water
(i.e., drinking, recreation, aquatic habitat, and fisheries) are impaired
by pollutants, as required by Section 303(d) of the Federal Clean
Water Act. 303(d) listed waters include estuaries, lakes, and streams
that fall short of state surface water quality standards and are not
expected to improve within the next two years from date of publishing.
Discharge compliance with water quality standards: The condition
that applies where a municipality has been notified that the discharge
of stormwater authorized under its MS4 permit may have caused or has
the reasonable potential to cause or contribute to the violation of
an applicable water quality standard. Under this condition, the 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 the EPA
for a water body or watershed into which the MS4 discharges.
The condition in the municipality's MS4 permit that applies
if a TMDL is approved in the future by the EPA for any water body
or watershed into which an MS4 discharges. Under this condition, the
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 New York State Department of Environmental
Conservation (NYSDEC) that authorizes the discharge of pollutants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
The Superintendent of Highways or his/her authorized designee,
having responsibility for the overall implementation of the Town's
Stormwater Management Program.
The maximum amount of a pollutant 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, which is contaminated with
pollutants and is or will be discarded.
A permanent or intermittent stream or other body of water,
either natural or man-made, which gathers or carries surface water.
Shall be construed to include lakes, bays, sounds, ponds,
impounding reservoirs, springs, rivers, streams, creeks, estuaries,
marshes, inlets, canals, the Atlantic Ocean within the territorial
seas of the State of New York, and all other bodies of surface water,
natural or artificial, inland or coastal, fresh or salt, public or
private, which are wholly or partially within or bordering the state
or within its jurisdiction.
Any natural or artificial fresh or marine body of water commonly
known as a stream, river, creek, lake, pond, estuary, bay, harbor,
ocean, or the like. A waterway includes those areas defined as lands
under water.
Areas that meet the definition of "tidal wetland" or "freshwater wetland" as defined in Chapter 81 of the Town Code.
The requirements under this chapter shall be applicable to all
water entering the MS4, or private property, generated from any developed
or undeveloped lands, unless explicitly exempted by an authorized
enforcement agency.
A.
Stormwater runoff, natural drainage, or any means of stormwater conveyance
shall not be diverted to other private or public real property, unless
previously approved by an authorized body.
B.
Prohibition of illegal discharges. No person or constructed system
shall discharge or cause to be discharged into the MS4 any materials
other than stormwater, except as provided herein. The commencement,
conduct or continuance of any illicit discharge to the MS4 is prohibited
except as described herein.
C.
Exceptions to discharge prohibitions. The following discharges are
exempt from discharge prohibitions established by this chapter, unless
the discharges are determined to be substantial contributors of pollutants:
(1)
Water line flushing or other potable water sources, landscape irrigation
or lawn watering, existing diverted stream flows, rising groundwater,
uncontaminated groundwater infiltration to storm drains, uncontaminated
pumped groundwater, foundation or 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, chlorine-free swimming pool discharges, residential
street wash water, water from fire-fighting activities, and any other
water source not containing pollutants. Such exempt discharges shall
be made in accordance with an appropriate plan for reducing pollutants,
as approved in writing by the SMO.
(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, provided
the SMO receives written notification of the test location and duration
48 hours prior to the discharge.
(4)
Discharge authorized pursuant to a SPDES permit, waiver, or waste
discharge order issued to the discharger and administered under the
authority of the NYSDEC, provided that the discharger is in full compliance
with all requirements of the permit, waiver, or order and other applicable
laws and regulations.
The following illicit connections shall be prohibited:
A.
The construction, use, maintenance or continued existence of illicit
connections to the MS4.
B.
This prohibition expressly includes, without limitations, prior illicit
connections, regardless of whether the connection was permissible
under law or practices applicable or prevailing at the time of connection.
C.
A property owner shall be in violation of this chapter if a connecting
line or overland flow conveying wastewater to the municipality's
MS4 is found on the property; or allows such a connection to continue.
B.
Upon notification to a property owner that an activity is causing
or contributing to violations of the Town's MS4 SPDES permit,
that property owner shall take all reasonable actions, within 30 days
of written notification, to correct such activities such that the
activity no longer causes or contributes to violations of the municipality's
MS4 SPDES permit authorization. If special conditions warrant a delay
in corrective action, a request for an extension of time must be made
in writing to the SMO. The granting of an extension shall not be construed
as permission to violate conditions set forth in this chapter, nor
shall it be used to set precedent for future extension requests.
A.
Best management practices. Where the SMO has identified illicit discharges
under this chapter or activities contaminating stormwater, the SMO
may require implementation of best management practices (BMPs) to
control those illicit discharges and activities, which may include
the following:
(1)
The owner or operator of private property or a commercial or industrial
establishment to provide, at his/her own expense, reasonable protection
from accidental discharge of prohibited materials or other wastes
into the MS4 or to private property 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 or an activity contaminating
stormwater, to implement additional structural and nonstructural BMPs
to reduce or eliminate the source of pollutant(s) to the MS4.
B.
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.
A.
The SMO may, without prior notice, suspend MS4 discharge access to
a property owner 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 responsible party
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 hazardous conditions which may adversely affect the
health, safety, welfare, and property of Town residents and the general
public.
B.
Termination due to the detection of illicit discharge. Any property
owner conveying a discharge to the Town's MS4 or private property
in violation of this chapter may have his/her MS4 access terminated
if such termination would abate or reduce an illicit discharge. The
SMO will notify a violator in writing of the proposed termination
of its MS4 access and the reasons therefor. The violator may petition
the SMO within 15 calendar days for reconsideration and an abatement
conference or hearing. The SMO may grant access 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 property owner commits an offense, punishable by fines,
if the property owner 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 Town 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. The SMO is authorized
to make or cause to be made inspections to determine compliance with
the Town's MS4 permit and provisions of this chapter; and to
determine the cause of illicit discharge in order to safeguard the
health, safety, and welfare of the Town residents and the general
public. The SMO or his/her designated representative is authorized
to enter, upon the consent of the owner or facility operator, any
premises at any reasonable time or at such other time as may be necessary
in the event of an emergency, without the consent of the owner or
facility operator, for the purpose of performing his/her duties under
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 operations and/or property owners 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 Town 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 discharge
points.
(4)
The Town 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)
If the SMO has been refused access to any part of the premises from
which an illicit discharge is suspected, and the SMO has reasonable
cause to believe that a violation of this chapter has occurred, 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.
The refusal to allow access to any part of the premises shall be presumptive
evidence that a violation exists.
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 results or may result in illegal
discharges or pollutants discharging into the MS4 or private property,
said person shall take all necessary steps to ensure the source and
discovery, containment, and cleanup of such release. In the event
of such a release of hazardous materials, said person shall immediately
notify NYSDEC of the occurrence via emergency dispatch services or
911. In the event of a release of nonhazardous materials, said person
shall notify the SMO in person, by telephone, or email no later than
the next business day. Notifications in person, by telephone, or email
shall be confirmed by written notice addressed and mailed to the SMO
within three business days of the notification. 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.
Criminal sanctions.
(1)
Any property owner who violates any provision of this chapter or
the conditions imposed by the SMO or his/her designated representative
shall, in addition to administrative sanctions, be guilty of a violation
punishable by a fine of not less than $1,000 nor more than $3,000
and for a second and each subsequent offense be guilty of a misdemeanor,
punishable by a fine of not less than $3,000 nor more than $10,000
or a term of imprisonment of not less than 15 days nor more than six
months, or both.
(2)
Each offense shall be a separate and distinct offense, and, in the
case of a continuing offense, each day's continuance thereof
shall be deemed a separate and distinct offense.
B.
Any property owner who violates any provision of this chapter or
the conditions imposed by the SMO or his/her designated representative
may, in lieu of administrative and criminal sanctions, enter into
an order of consent with the SMO. Such order may include:
C.
Equitable relief. The Town of Brookhaven shall have the right to
seek equitable relief to restrain any violation or threatened violation
of any of the provisions of this chapter.
It shall be unlawful for any person or property owner to violate
any provision or fail to comply with any of the requirements of this
chapter. If a person or property owner has violated or continues to
violate the provisions of this chapter, the SMO may petition for a
preliminary or permanent injunction restraining the person or property
owner from activities which would create further violations or compelling
the person or property owner to perform abatement or remediation of
the violation. In addition to any other available remedy at law or
as provided under this chapter, the Town may institute a suit in equity,
injunction relief, to restrain, correct or abate such violations of
this chapter.
A.
Any provision contained in the Town Code to the contrary notwithstanding,
the Town Attorney, or his/her designee, in consultation with the Stormwater
Management Officer, in addition to or in lieu of seeking criminal
penalties or seeking to restrain or enjoin activity in violation of
this chapter, may enter into a civil compromise, whereby the person
or property who or which committed such violation agrees to pay to
the Town a civil penalty in an agreed amount. The payment of a civil
penalty must be made in conjunction with an agreement on consent whereby
the violator agrees to take steps to comply with the requirements
under this chapter.
B.
Where a property owner 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 Town Attorney and concurrence
of the SMO, upon a determination that:
C.
Alternative remedies may consist of, but not be limited to, one or
more of the following:
(1)
Attendance at compliance workshops;
(2)
Storm drain stenciling or storm drain marking;
(3)
Beach, river, stream or creek cleanup activities;
(4)
Implementing one or more of the recommendations of a watershed management
plan that has been adopted by the Town or another agency;
(5)
Partaking in an environmental restoration or planting project; or
(6)
A payment to the Joseph P. Macchia Environmental Trust Fund in an
amount determined by the SMO or Town Attorney in an amount not to
exceed $20,000.
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 statute, law and/or
rule and regulation; and it is within the discretion of the Town to
seek cumulative remedies.
If any clause, sentence, paragraph, subdivision, section, or
part of this chapter or the application thereof to any person, individual,
corporation, firm, partnership, entity, or circumstance shall be adjudged
by any court of competent jurisdiction to be invalid or unconstitutional,
such order or judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section, or part of this chapter,
or in its application to the person, individual, corporation, firm,
partnership, entity, or circumstance directly involved in the controversy
in which such order or judgment shall be rendered.
