[Added 7-6-2009]
For the purposes of this article, the terms listed below are
defined as follows:
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq., also known as the "Clean Water Act"), and any subsequent
amendments thereto.
Any spilling, leaking, pumping, pouring, emptying, dumping,
disposing or other addition of pollutants to waters of the state.
"Direct discharge" or "point source" means any discernible, confined,
and discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation or vessel or
other floating craft, from which pollutants are or may be discharged.
The person(s) or department authorized under § 281-89 of this article to administer and enforce this article.
Any person who is subject to a multi-sector general permit
for industrial activities, a general permit for construction activity,
or a general permit for the discharge of stormwater from the Maine
Department of Transportation and the Maine Turnpike Authority Municipal
Separate Storm Sewer Systems, or a general permit for the discharge
of stormwater from state or federally owned authority municipal separate
storm sewer system facilities; and any nonstormwater discharge permitted
under a NPDES permit, waiver, or waste discharge license or order
issues to the discharger and administered under the authority of the
U.S. Environmental Protection Agency ("EPA") or the Maine Department
of Environmental Protection ("DEP").
Activity or activities subject to NPDES Industrial Permits
as defined in 40 CFR 122.26(b)(14).
Conveyances for stormwater, including, but not limited to,
roads with drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, human-made channels or storm drains (other than
publicly owned treatment works and combined sewers) owned or operated
by any municipality, sewer or sewage district, fire district, state
agency or federal agency or other public entity that discharges directly
to surface waters of the state.
A permit issued by the EPA or by the DEP 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 an MS4 that is not composed entirely of
stormwater.
Dredged spoil, solid waste, junk, incinerator residue, sewage,
refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological
or radiological materials, oil, petroleum products or by-products,
heat, wrecked or discarded equipment, rock, sand, dirt and industrial,
municipal, domestic, commercial or agricultural wastes of any kind.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips,
located within the municipality from which discharges in storm drainage
system are or may be created, initiated, originated or maintained.
Any small MS4 regulated by the State of Maine General Permit
for the Discharge of Stormwater from Small Municipal Separate Storm
Sewer Systems dated June 3, 2003 (General Permit), including all those
located partially or entirely within an urbanized area (UA) and those
additional small MS4s located outside a UA that as of the issuance
of the general permit have been designated by the DEP as regulated
small MS4s.
Any MS4 that is not already covered by the Phase I MS4 stormwater
program, including municipally owned or operated storm sewer systems,
state or federally owned systems, such as colleges, universities,
prisons, Maine Department of Transportation and Maine Turnpike Authority
road systems and facilities, and military bases and facilities.
That municipality's regulated small MS4.
Any stormwater runoff, snowmelt runoff, and surface runoff
and drainage; "stormwater" has the same meaning as storm water.
The areas of the State of Maine so defined by the latest
decennial census by the U.S. Bureau of the Census.
This article shall apply to all persons discharging stormwater
and/or non-stormwater discharges from any premises into the storm
drainage system.
The City Engineer, Public Services Director, and any employee(s)
designated by the Mayor are the enforcement authority who shall administer,
implement, and enforce the provisions of this article.
A.
General prohibition. Except as allowed or exempted herein, no Person
shall create, initiate, originate or maintain a non-stormwater discharge
to the storm drainage system. Such nonstormwater discharges are prohibited
notwithstanding the fact that the municipality may have approved the
connections, drains, or conveyances by which a person discharges prohibited
nonstormwater discharges to the storm drainage system.
B.
Allowed nonstormwater discharges. The creation, initiation, origination,
and maintenance of the following nonstormwater discharges to the storm
drainage system are allowed:
(1)
Landscape irrigation; diverted stream flows; rising ground waters;
uncontaminated ground water infiltration [as defined at 40 CFR 35.2005(20)];
uncontaminated pumped groundwater; uncontaminated flows from foundation
drains; air-conditioning and compressor condensate; irrigation water;
flows from uncontaminated springs; uncontaminated water from crawl
space pumps; uncontaminated flows from footing drains; lawn watering
runoff; flows from riparian habitats and wetlands; residual street
wash water (where spills/leaks of toxic or hazardous materials have
not occurred, unless all spilled material has been removed and detergents
are not used); hydrant flushing and firefighting activity runoff;
waterline flushing and discharges from potable water sources; and
individual residential car washing;
(2)
Discharges specified, in writing, by the enforcement authority as
being necessary to protect public health and safety; and
(3)
Dye testing, with verbal notification to the enforcement authority
prior to the time of the test.
C.
Exempt person or discharge. This article shall not apply to an exempt
person or discharge, except that the enforcement authority may request
from exempt persons and persons with exempt discharges copies of permits,
notices of intent, licenses and orders from the EPA or DEP that authorize
the discharge(s).
The enforcement authority may, without prior notice, physically
suspend discharge access to the storm drainage system to a person
when such suspension is necessary to stop an actual or threatened
nonstormwater discharge to the storm drainage system, 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 which may cause the municipality to violate the terms of its environmental
permits. Such suspension may include, but is not limited to, blocking
pipes, constructing dams or taking other measures, on public ways
or public property, to physically block the discharge to prevent or
minimize a nonstormwater discharge to the storm drainage system. If
the person fails to comply with a suspension order issued in an emergency,
the enforcement authority may take such steps as deemed necessary
to prevent or minimize damage to the storm drainage system or to minimize
danger to persons; provided, however, that in taking such steps, the
enforcement authority may enter upon the premises that are the source
of the actual or threatened nonstormwater discharge to the storm drainage
system only with the consent of the premises' owner, occupant, or
agent or as otherwise authorized by law.
In order to determine compliance with this article, the enforcement
authority may enter upon and inspect premises subject to this article
at reasonable hours with the consent of the premises' owner, occupant
or agent, or as otherwise authorized by law, to inspect the premises
and connections thereon to the storm drainage system and to conduct
monitoring, sampling and testing of the discharge to the storm drainage
system.
It shall be unlawful for any person to violate any provision
of, or fail to comply with any of the requirements of, this article.
Whenever the enforcement authority believes that a person has violated
this article, the enforcement authority may enforce this article in
accordance with 30-A M.R.S.A. § 4452, as amended from time
to time.
A.
Notice of violation.
(1)
Whenever
the enforcement authority believes that a person has violated this
article, the enforcement authority may order compliance with this
article by written notice of violation to that person, indicating
the nature of the violation and ordering the action necessary to correct
it, including, without limitation:
(a)
The elimination of nonstormwater discharges to the storm drainage
system, including, but not limited to, disconnection of the premises
from the MS4;
(b)
The cessation of discharges, practices, or operations in violation
of this article;
(c)
At the person's expense, the abatement or remediation (in accordance
with best management practices in DEP rules and regulations) of nonstormwater
discharges to the storm drainage system and the restoration of any
affected property; or
(d)
The payment of fines, of the municipality's remediation costs
and of the municipality's reasonable administrative costs and attorneys'
fees and costs.
(2)
If
abatement of a violation and/or restoration of affected property is
required, the notice shall set forth a deadline within which such
abatement or restoration must be completed.
B.
Penalties; fines; injunctive relief. Any person who violates this
article shall be subject to fines, penalties, and orders for injunctive
relief and shall be responsible for the municipality's attorneys'
fees and costs, all in accordance with 30-A M.R.S.A. § 4452.
Each day such violation continues shall constitute a separate violation.
Moreover, any person who violates this article also shall be responsible
for any and all fines, penalties, damages, and costs, including, but
not limited to, attorneys' fees and costs incurred by the municipality
for violation of federal and state environmental laws and regulations
caused by or related to that person's violation of this article; this
responsibility shall be in addition to any penalties, fines or injunctive
relief imposed under this section.
C.
Consent agreement. The enforcement authority may, with the approval
of the municipal officers, enter into a written consent agreement
with the violator to address timely abatement of the violation(s)
of this article for the purposes of eliminating violations of this
article and recovering fines, costs and fees without court action.
D.
Appeal of notice of violation. Any person receiving a notice of violation or suspension notice may appeal the determination of the enforcement authority to the Zoning Board of Appeals. The notice of appeal must be received within 30 days from the date of receipt of the notice of violation. The Zoning Board of Appeals shall hold a de novo hearing on the appeal within 30 days from the date of receipt of the notice of appeal. The Zoning Board of Appeals may affirm, reverse or modify the decision of the enforcement authority. A suspension under § 281-91 of this article remains in place unless or until lifted by the Zoning Board of Appeals or by a reviewing court. A party aggrieved by the decision of the Zoning Board of Appeals may appeal that decision to the Maine Superior Court within 45 days of the date of the Zoning Board of Appeals decision pursuant to Rule 80B of the Maine Rules of Civil Procedure.
E.
Enforcement measures. 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 to the Zoning Board of Appeals, within 45 days
of the decision of the Zoning Board of Appeals affirming the Enforcement
Authority's decision, then the Enforcement Authority may recommend
to the municipal officers that the municipality's attorney file an
enforcement action in a Maine court of competent jurisdiction under
Rule 80K of the Maine Rules of Civil Procedure. Notwithstanding these
requirements, in the event of an emergency situation that presents
an immediate threat to public health, safety or welfare or that may
result in damage to the municipality's storm drainage system, the
municipality may seek injunctive relief at any time after learning
of such emergency situation.
F.
Ultimate responsibility of discharger. The standards set forth herein
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, or unauthorized discharge of pollutants
into waters of the U.S. caused by said person. This article shall
not create liability on the part of the municipality, or any officer,
agent, or employee thereof for any damages that result from any person's
reliance on this article or any administrative decision lawfully made
hereunder.
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, clauses, sentences, or paragraphs or application of this
article, which shall remain in full force and effect.
The City of Westbrook enacts this Non-Stormwater Discharge Ordinance
(the Ordinance) pursuant to 30-A M.R.S.A. § 3001 (municipal
home rule ordinance authority), 38 M.R.S.A. § 413 (the Wastewater
Discharge Law), 33 U.S.C. § 1251 et seq. (the Clean Water
Act), and 40 CFR Part 122 [U.S. Environmental Protection Agency's
regulations governing the National Pollutant Discharge Elimination
System (NPDES)]. The Maine Department of Environmental Protection,
through its promulgation of the General Permit for the Discharge of
Stormwater from Small Municipal Separate Storm Sewer Systems dated
June 3, 2003, has listed the City of Westbrook as having a regulated
municipal separate storm sewer system (small MS4); under this General
Permit, listing as a regulated small MS4 necessitates enactment of
this article as part of the municipality's stormwater management program.
