[HISTORY: Adopted by the Borough Council of the Borough of
Old Forge 5-19-2020 by Ord. No. 2-2020. Amendments noted where applicable.]
A.Â
The title of this chapter shall be "Illicit Discharge and Connection
Stormwater Ordinance."
B.Â
The purpose of this chapter is to provide for the health, safety,
and general welfare of the citizens of the Borough of Old Forge through
the regulation of nonstormwater discharges to the storm drainage system
to the maximum extent practicable as required by federal and state
law. This chapter establishes methods for controlling the introduction
of pollutants into the municipal separate storm sewer system (MS4)
in order to comply with requirements of the National Pollutant Discharge
Elimination System (NPDES) permit process. The objectives of this
chapter are:
(1)Â
To regulate the contribution of pollutants to the municipal separate
storm sewer system (MS4) by stormwater discharges by any user.
(2)Â
To prohibit illicit connections and discharges to the municipal separate
storm sewer system.
(3)Â
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
chapter.
For the purposes of this chapter and as used in this chapter,
the following shall mean:
The Old Forge Borough duly appointed Engineer or Engineering
Firm; The Old Forge Borough Code Enforcement Officer; or an employees
or designees appointed from time to time by the Council of the Borough
of Old Forge designated to enforce this chapter.
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 subject to NPDES construction permits. These include
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 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 direct or indirect nonstormwater discharge to the storm
drain system.
An illicit connection is defined as either of 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 an authorized
enforcement agency, or 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 an
authorized enforcement agency.
Activities subject to NPDES industrial permits as defined
in 40 CFR, Section 122.26 (b)(14).
A permit issued by EPA [or by a state under authority delegated
pursuant to 33 USC § 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.
Any building, lot, parcel of land, or portion of land whether
improved or unimproved including adjacent sidewalks and parking strips.
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 which 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.
This chapter shall apply to all water entering the storm drain
system generated on any developed and undeveloped lands unless explicitly
exempted by an authorized enforcement agency.
The Borough of Old Forge shall administer, implement, and enforce
the provisions of this chapter. Any powers granted or duties imposed
upon the authorized enforcement agency may be delegated in writing
by the authorized enforcement agency to persons or entities acting
in the beneficial interest of or in the employ of the agency.
The provisions of this chapter are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this chapter or
the application thereof to any person, establishment, or circumstances
shall be held invalid, such invalidity shall not affect the other
provisions or application of this chapter.
The standards set forth herein and promulgated pursuant to this
chapter are minimum standards; therefore, this chapter does not intend
nor imply that compliance by any person will ensure that there will
be no contamination, pollution, nor unauthorized discharge of pollutants.
A.Â
Prohibition of illegal discharges. No person shall discharge or cause
to be discharged into the municipal storm drain system or watercourses
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 drain
system is prohibited except as described as follows:
(1)Â
The following discharges are exempt from discharge prohibitions established
by this chapter: 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), firefighting activities,
and any other water source not containing Pollutants.
(2)Â
Discharges specified in writing by the authorized enforcement agency
as being necessary to protect public health and safety.
(3)Â
Dye testing is an allowable discharge but requires a verbal notification
to the authorized enforcement agency prior to the time of the test.
(4)Â
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.Â
Prohibition of illicit connections.
(1)Â
The construction, use, maintenance or continued existence of illicit
connections to the storm drain system is prohibited.
(2)Â
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)Â
A person is considered to be in violation of this chapter if the
person connects a line conveying sewage to the MS4 or allows such
a connection to continue.
A.Â
Suspension due to illicit discharges in emergency situations. The
Borough of Old Forge's authorized enforcement agency 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,
or to the health or welfare of persons, or to the MS4 or waters of
the United States. If the violator fails to comply with a suspension
order issued in an emergency, the authorized enforcement agency may
take such steps as deemed necessary to prevent or minimize damage
to the MS4 or waters of the United States, or to minimize danger to
persons.
B.Â
Suspension due to the detection of illicit discharge.
(1)Â
Any person discharging to the MS4 in violation of this chapter may
have their MS4 access terminated if such termination would abate or
reduce an illicit discharge. The authorized enforcement agency will
notify a violator of the proposed termination of its MS4 access. The
violator may petition the authorized enforcement agency for a reconsideration
and hearing.
(2)Â
A person commits an offense if the person reinstates MS4 access to
premises terminated pursuant to this section, without the prior approval
of the authorized enforcement agency.
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 Borough of Old Forge's authorized
enforcement agency prior to the allowing of discharges to the MS4.
A.Â
Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial activity, including construction
activity.
B.Â
Access to facilities.
(1)Â
The Borough of Old Forge's authorized enforcement agency 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 representatives of the authorized enforcement agency.
(2)Â
Facility operators shall allow the Borough of Old Forge's authorized
enforcement agency ready access to all parts of the premises for the
purposes of inspection, sampling, examination and copying of records
that must be kept under the conditions of an NPDES permit to discharge
stormwater, and the performance of any additional duties as defined
by state and federal law.
(3)Â
The Borough of Old Forge's authorized enforcement agency shall
have the right to set up on any permitted facility such devices as
are necessary in the opinion of the authorized enforcement agency
to conduct monitoring and/or sampling of the facility's stormwater
discharge.
(4)Â
The Borough of Old Forge's authorized enforcement agency has
the right to require the discharger to install monitoring equipment
as necessary. 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)Â
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 Borough of Old
Forge's authorized enforcement agency and shall not be replaced.
The costs of clearing such access shall be borne by the operator.
(6)Â
Unreasonable delays in allowing the Borough of Old Forge's authorized
enforcement agency access to a permitted facility is a violation of
a stormwater discharge permit and of this chapter. 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 authorized enforcement agency reasonable access to the
permitted facility for the purpose of conducting any activity authorized
or required by this chapter.
(7)Â
If the Borough of Old Forge's authorized enforcement agency
has been refused access to any part of the premises from which stormwater
is discharged, and he/she is able to demonstrate probable cause to
believe that there may be a violation of this chapter, or that there
is a need to inspect and/or sample as part of a routine inspection
and sampling program designed to verify compliance with this chapter
or any order issued hereunder, or to protect the overall public health,
safety, and welfare of the community, then the authorized enforcement
agency may seek issuance of a search warrant from any court of competent
jurisdiction.
Borough of Old Forge's authorized enforcement agency 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 drain system, or waters
of the U.S. 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 municipal
storm drain system or watercourses through the use of these structural
and nonstructural BMPs. Further, any person responsible for a property
or premise, 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 municipal separate storm sewer system. Compliance
with all terms and conditions of a valid NPDES permit authorizing
the discharge of stormwater associated with industrial 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.
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.
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 drain system, or water of the U.S. said person shall take all
necessary steps to ensure the discovery, containment, and cleanup
of such release. In the event of such a release of hazardous materials
said person shall immediately notify emergency response agencies of
the occurrence via emergency dispatch services. In the event of a
release of non-hazardous materials, said person shall notify the authorized
enforcement agency in person or by phone 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 Borough Manager
and the Borough of Old Forge's authorized enforcement agency
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.
A.Â
Notice of violation.
(1)Â
Whenever the Borough of Old Forge's authorized enforcement agency
finds that a person has violated a prohibition or failed to meet a
requirement of this chapter, the authorized enforcement agency may
order compliance by written notice of violation to the responsible
person. Such notice may require without limitation:
(a)Â
The performance of monitoring, analyses, and reporting;
(b)Â
The elimination of illicit connections or discharges;
(c)Â
That violating discharges, practices, or operations shall cease
and desist;
(d)Â
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(e)Â
Payment of a fine to cover administrative and remediation costs;
and
(f)Â
The implementation of source control or treatment BMPs.
(2)Â
If abatement of a violation and/or restoration of affected property
is required, the notice shall set forth a deadline within which such
remediation or restoration must be completed. Said notice shall further
advise that, should the violator fail to remediate or restore within
the established deadline, the work will be done by a designated governmental
agency or a contractor and the expense thereof shall be charged to
the violator.
Any person receiving a notice of violation may appeal the determination
of the authorized enforcement agency. The notice of appeal must be
received within 10 days from the date of the notice of violation.
Hearing on the appeal before the Old Forge Borough Council or its
designee shall take place within 15 days from the date of receipt
of the notice of appeal. The decision of the council or their designee
shall be final.
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 10 days of the decision of the municipal authority upholding
the decision of the authorized enforcement agency, then representatives
of the authorized enforcement agency shall enter upon the subject
private property and are authorized to take any and all measures necessary
to abate the violation and/or restore the property. It shall be unlawful
for any person, owner, agent or person in possession of any premises
to refuse to allow the government agency or designated contractor
to enter upon the premises for the purposes set forth above.
A.Â
Within 10 days after abatement of the violation, the owner of the
property will be notified of the cost of abatement, including administrative
costs. The property owner may file a written protest objecting to
the amount of the assessment within 10 days. If the amount due is
not paid within a timely manner as determined by the decision of the
municipal authority or by the expiration of the time in which to file
an appeal, the charges shall become a special assessment against the
property and shall constitute a lien on the property for the amount
of the assessment.
B.Â
Any person violating any of the provisions of this article shall
become liable to the Borough of Old Forge by reason of such violation.
The liability shall be paid in not more than 12 equal payments. Interest
at the rate of 2% per annum shall be assessed on the balance beginning
on the first day following discovery of the violation.
It shall be unlawful for any person to violate any provision
or fail to comply with any of the requirements of this chapter. If
a person has violated or continues to violate the provisions of this
chapter, the authorized enforcement agency 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.
In lieu of enforcement proceedings, penalties, and remedies
authorized by this chapter, the authorized enforcement agency may
impose upon a violator alternative compensatory actions, such as storm
drain stenciling, attendance at compliance workshops, creek cleanup,
etc.
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.
Any person that has violated or continues to violate this chapter
shall be liable to criminal prosecution to the fullest extent of the
law, and shall be subject to a criminal penalty of $500 per violation
per day and/or imprisonment for a period of time not to exceed 30
days. The authorized enforcement agency may recover all attorney's
fees court costs and other expenses associated with enforcement of
this chapter, including sampling and monitoring expenses.
The remedies listed in this chapter are not exclusive of any
other remedies available under any applicable federal, state or local
law and it is within the discretion of the authorized enforcement
agency to seek cumulative remedies.