[HISTORY: Adopted by the Board of Trustees of the Village
of Dering Harbor as indicated in article histories. Amendments noted
where applicable.]
[Adopted 3-19-2011 by L.L. No. 2-2011]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Village of Dering Harbor
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 article 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 article are:
A.
To meet the requirements of the SPDES General Permit for Stormwater
Discharges from MS4s, Permit No. GP-0-08-002 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 nonstormwater
wastes;
C.
To prohibit illicit connections, activities and discharges to the
MS4;
D.
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
article; and
E.
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.
Whenever used in this article, unless a different meaning is
stated in a definition applicable to only a portion of this article,
the following terms will have meanings set forth below:
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 Section 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.
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.
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 § 157-5 of this article.
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):
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Village of Dering Harbor.
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 either as
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.
Conditions including:
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 Village of Dering Harbor to enforce this article.
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.
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 article 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 article. 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.
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 § 157-5A(1) through (4). 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 article, unless the Department or the municipality has determined
them to be substantial contributors of pollutants: 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, dechlorinated 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.
(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 article.
(3)
Dye testing in compliance with applicable state and chapters 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
a 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 article if the
person connects a line conveying sewage to the municipality's MS4,
or allows such a connection to continue.
No persons shall operate a failing individual sewage treatment
system in areas tributary to the municipality's MS4. A failing individual
sewage treatment system is one which has one or more of the following
conditions:
A.
The backup of sewage into a structure.
B.
Discharges of treated or untreated sewage onto the ground surface.
C.
A connection or connections to a separate stormwater sewer system.
D.
Liquid level in the septic tank above the outlet invert.
E.
Structural failure of any component of the individual sewage treatment
system that could lead to any of the other failure conditions as noted
in this section.
F.
Contamination of off-site groundwater.
A.
Activities that are subject to the requirements of this section are
those types of activities that:
B.
Such activities include failing individual sewage treatment systems as defined in § 157-6, improper management of pet waste or any other activity that causes or contributes to violations of the municipality's MS4 SPDES permit authorization.
C.
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 § 157-2 or activities contaminating stormwater as defined in § 157-7 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 § 157-2 or an activity contaminating stormwater as defined in § 157-7, 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.
B.
Individual sewage treatment systems: response to special conditions requiring no increase of pollutants or requiring a reduction of pollutants. Where individual sewage treatment systems are contributing to the municipality's being subject to the special conditions as defined in § 157-2 of this article, the owner or operator of such individual sewage treatment systems shall be required to:
(1)
Maintain and operate individual sewage treatment systems as follows:
(a)
Inspect the septic tank annually to determine scum and sludge
accumulation. Septic tanks must be pumped out whenever the bottom
of the scum layer is within three inches of the bottom of the outlet
baffle or sanitary tee or the top of the sludge is within 10 inches
of the bottom of the outlet baffle or sanitary tee.
(b)
Avoid the use of septic tank additives.
(c)
Avoid the disposal of excessive quantities of detergents, kitchen
wastes, laundry wastes, and household chemicals; and
(d)
Avoid the disposal of cigarette butts, disposable diapers, sanitary
napkins, trash and other such items.
(2)
Repair or replace individual sewage treatment systems as follows:
(a)
In accordance with 10 NYCRR Appendix 75A to the maximum extent
practicable.
(b)
A design professional licensed to practice in New York State
shall prepare design plans for any type of absorption field that involves:
(c)
A written certificate of compliance shall be submitted by the
design professional to the municipality at the completion of construction
of the repair or replacement system.
A.
Suspension of access to MS4. 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 article
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 article, 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 article.
B.
Access to facilities.
(1)
The SMO 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 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 article.
(3)
The municipality shall have the right to set up on any facility subject
to this article 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 article to install monitoring equipment as is reasonably necessary
to determine compliance with this article. 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 article is a violation of this article. A person who
is the operator of a facility subject to this article 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 article.
(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 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, then the SMO may seek
issuance of a search warrant from any court of competent jurisdiction.
A.
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.
B.
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.
C.
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.
D.
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
article, 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.
B.
If abatement of a violation and/or restoration of affected property
is required, the notice of violation 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.
C.
Penalties. In addition to or as an alternative to any penalty provided
herein or by law, any person who violates the provisions of this article
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 article
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 Village Board of Trustees 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 article. If
a person has violated or continues to violate the provisions of this
article, 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.
Where a person has violated a provision of this article, 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 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.
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 authorized enforcement
agency to seek cumulative remedies.
The provisions of this article are hereby declared to be severable,
and if any section, clause, sentence, paragraph or phrase of this
article or the application thereof to any person, establishment, or
circumstances shall be held invalid or unconstitutional, such decision
shall not affect the validity of the remaining sections, clause, sentences,
paragraphs or phrases of this article, but they shall remain in effect,
it being the legislative intent that this article and application
of this article shall stand, notwithstanding the invalidity of any
part.
This article shall take effect immediately upon filing in the
office of the Secretary of State in accordance with § 27
of the Municipal Home Rule Law.
