[Added 7-26-2022 by Ord. No. O-22-09]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the City, through the regulation
of nonstormwater discharges to the stormwater management 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 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
article are:
A. To regulate the contribution of pollutants by any user to the municipal
separate storm sewer system (MS4) by stormwater discharges;
B. To prohibit illicit connections and illicit discharges to the municipal
separate storm sewer system; and
C. To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
article.
This article shall apply to all flows entering the stormwater
management system generated on any developed and undeveloped lands
unless explicitly exempted by the Mayor and Council.
The Engineering Department shall administer, implement, and
enforce the provisions of this article. Any powers granted or duties
imposed may be delegated in writing by the City Engineer or his or
her duly authorized agent, to persons or entities acting in the beneficial
interest of or in the employ of the City.
This article is not intended to modify or repeal any other ordinance,
rule, regulation, or other provision of law. The requirements of this
article are in addition to the requirements of any other ordinance,
rule, regulations, or other provision of law, and where any provision
of this article imposes restrictions different from those imposed
by any other ordinance, rule, regulation, or other provision of law,
whichever provision is more restrictive or imposes higher protective
standards for human health or the environment shall control.
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.
A. Prohibition of illicit discharges. No person shall discharge or cause
to be discharged into the municipal stormwater management 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 illicit discharge
to the stormwater management system is prohibited. The following discharges
are exempt from discharge prohibitions established by this article:
(1) 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 wetland flows, swimming
pools (if dechlorinated — typically less than one PPM chlorine),
and any other water source not containing pollutants.
(2) Discharges or flow from firefighting and other discharges specified
in writing by the Engineering Department as being necessary to protect
public health and safety.
(3) Dye testing subject to a verbal notification to the Engineering Department
prior to the time of the test.
(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 United
States 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 drainage system.
B. Prohibition of illicit connections.
(1) The construction, use, maintenance or continued existence of illicit
connections to the stormwater management 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 MS4 or allows such
a connection to continue.
(4) Improper connections in violation of this article must be disconnected
and redirected, if necessary, to an approved on-site wastewater management
system or the sanitary sewer system upon approval of the Engineering
Department.
(5) Any drain or conveyance that has not been documented in plans, maps
or the equivalent, and which may be connected to the Stormwater. Management
System, shall be located by the owner or occupant of that property
upon receipt of written notice of violation from the Engineering Department
requiring that such locating be completed. Such notice will specify
a reasonable time period within which the location of the drain or
conveyance is to be determined, that the drain or conveyance be identified
as storm sewer, sanitary sewer or other, and that the outfall location
or point of connection to the stormwater management system, sanitary
sewer system or other discharge point be identified. Results of these
investigations are to be documented and provided to the Engineering
Department.
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.
A. Submission of notice of intent to the Engineering Department.
(1) 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 Engineering Department prior to the allowing
of discharges to the MS4.
(2) The operator of a facility, including construction sites, required
to have an NPDES permit to discharge stormwater associated with industrial
activity shall submit a copy of the notice of intent (NOI) to the
Engineering Department at the same time the operator submits the original
NOI to the Maryland Department of the Environment or the Environmental
Protection Agency as applicable.
(3) The copy of the NOI may be delivered to the Engineering Department
either in person or by mailing it to:
City of Hagerstown
1 East Franklin Street
3rd Floor
Hagerstown, MD 21740
Attn: City Engineer
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A. Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial activity, including construction
activity.
B. Right of entry to facilities having an NPDES permit for industrial
activity or construction activity.
(1) The Engineering Department 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 designated
personnel of the Engineering Department.
(2) Facility operators shall allow the Engineering Department 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) The Engineering Department shall have the right to set up on any
permitted facility such devices as are necessary in the opinion of
the Engineering Department to conduct monitoring and/or sampling of
the facility's stormwater discharge.
(4) The Engineering Department 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) 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 Engineering
Department and shall not be replaced. The costs of clearing such access
shall be borne by the operator.
(6) Unreasonable delays in allowing the Engineering Department 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
an NPDES permit to discharge stormwater associated with industrial
activity commits an offense if the person denies the Engineering Department
reasonable access to the permitted facility for the purposes of conducting
any activity authorized or required by this article.
C. Right of entry to facilities without an NPDES permit for industrial
activity or construction activity.
(1) The Engineering Department 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 Engineering
Department.
(2) The Engineering Department shall have the right to set up such devices
as are necessary in the opinion of the Engineering Department to conduct
monitoring and/or sampling of the facility's stormwater discharge.
(3) The Engineering Department 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.
(4) 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 Engineering
Department and shall not be replaced. The costs of clearing such access
shall be borne by the operator.
D. Search warrants. If any personnel of the Engineering Department 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, or to protect the overall public health,
safety, and welfare of the community, then the Engineering Department
and/or the City may seek issuance of a search warrant from any court
of competent jurisdiction.
The owner or operator of a commercial or industrial establishment
shall provide, at its own expense, reasonable protection from accidental
discharge of prohibited materials or other wastes into the municipal
stormwater management system or watercourses through the use of structural
and nonstructural BMPs. Further, any person responsible for a property
or premises, 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 MS4. 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
in compliance with the provisions of this section. These BMPs shall
be part of a stormwater pollution prevention plan (SWPPP) as necessary
for compliance with requirements of the NPDES permit.
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
stormwater management 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. In the
event of a release of nonhazardous materials, said person shall notify
the Engineering Department in person or by phone or email no later
than the next business day. Notifications in person or by phone shall
be confirmed by written notice addressed and mailed to the City of
Hagerstown, 1 East Franklin Street, 3rd Floor, Hagerstown, Maryland,
21740 Attn: City Engineer 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 a least three years. Failure to provide notification of a release,
as indicated above, is a violation of this article. This section does
not apply to sanitary sewer overflows as defined by COMAR 26.08.10.
A. Violations. It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this article. Any person who has violated or continues to violate the provisions of this article, may be subject to the enforcement actions outlined in this section or may be restrained by injunction or otherwise abated in a manner provided by law. In the event the violation constitutes an immediate danger to public health or public safety, the City Engineer or his designee, representative and/or contractors are authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The City Engineer is authorized to seek costs of the abatement as outlined in §
213-52.
B. Warning notice. When the City Engineer finds that any person has
violated, or continues to violate, any provision of this article,
or any order issued hereunder, the City Engineer may serve upon that
person a written warning notice, specifying the particular violation
believed to have occurred and requesting the discharger to immediately
investigate the matter and to seek a resolution whereby any offending
discharge will cease. Investigation and/or resolution of the matter
in response to the warning notice in no way relieves the alleged violator
of liability for any violations occurring before or after receipt
of the warning notice. Nothing in this subsection shall limit the
authority of the City Engineer to take any action, including emergency
action or any other enforcement action, without first issuing a warning
notice.
C. Notice of violation. Whenever the Engineering Department finds that
a person has violated a prohibition or failed to meet a requirement
of this article, the City Engineer may order compliance by written
notice of violation to the responsible person. The notice of violation
shall be served via first-class mail and by posting a copy on the
property, and shall contain:
(1) The name and address of the alleged violator;
(2) The address when available or a description of the building, structure
or land upon which the violation is occurring, or has occurred;
(3) A statement specifying the nature of the violation;
(4) A description of the remedial measures necessary to restore compliance
with this article and a time schedule for the completion of such remedial
action;
(5) A statement of the penalty or penalties that shall or may be assessed
against the person to whom the notice of violation is directed;
(6) A statement that the determination of violation may be appealed to
the City Engineer by filing a written notice of appeal within 10 business
days of service of notice of violation; and
(7) A statement specifying that, should the violator fail to restore
compliance within the established time schedule, the work will be
done by a designated governmental agency or a contractor and the expense
thereof shall be charged to the violator. Such notice may require
without limitation:
(a)
The performance of monitoring, analysis, and reporting;
(b)
The elimination of illicit connections or illicit discharges;
(c)
That violating discharges, practices, or operations shall cease
and desist;
(d)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(e)
Payment of a fee to cover administrative and remediate costs;
and
(f)
The implementation of source control or treatment BMPs.
D. Compensatory action. In lieu of enforcement proceedings, penalties,
and remedies authorized by this article, the Engineering Department
may impose upon a violator alternative compensatory actions, such
as storm drain stenciling, attendance at compliance workshops, creek
cleanup, etc.
E. Suspension of MS4 access.
(1) Emergency cease-and-desist orders. When the City Engineer finds that
any person has violated, or continues to violate, any provision of
this article, or any order issued hereunder, or that the person's
past violations are likely to recur, and that the person's violation(s)
has (have) caused or contributed to an actual or threatened discharge
to the MS4 or waters of the United States which reasonably appears
to present an imminent or substantial endangerment to the health or
welfare of persons or to the environment, the City Engineer may issue
an order to the violator directing it to immediately cease and desist
all such violations and directing the violator to:
(a)
Immediately comply with all Article requirements; and
(b)
Take such appropriate preventive action as may be needed to
properly address a continuing or threatened violation, including immediately
halting operations and/or terminating the discharge. Any person notified
of an emergency order directed to it under this subsection, shall
immediately comply and stop or eliminate its endangering discharge.
In the event of a discharger's failure to immediately comply
voluntarily with the emergency order, the City Engineer may take such
steps as deemed necessary to prevent or minimize harm to the MS4 or
waters of the United States, and/or endangerment to persons or to
the environment, including immediate termination of a facility's
water supply, sewer connection, or other municipal utility services.
The City Engineer may allow the person to recommence its discharge
when it has demonstrated to the satisfaction of the City Engineer
that the period of endangerment has passed, unless further termination
proceedings are initiated against the discharger under this article.
A person that is responsible, in whole or in part, for any discharge
presenting imminent endangerment shall submit a detailed written statement
describing the causes of the harmful discharge and the measures taken
to prevent any future occurrence, to the City Engineer within 30 days
of receipt of the emergency order. Issuance of an emergency cease-and-desist
order shall not be a bar against, or a prerequisite for, taking any
other action against the violator.
(2) Suspension due to illicit discharges in emergency situations. The
City Engineer 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 City
Engineer 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.
(3) Suspension due to the detection of illicit discharge. Any person
discharging to the MS4 in violation of this article may have its MS4
access terminated if such termination would abate or reduce an illicit
discharge. The Engineering Department will notify a violator of the
proposed termination of its MS4 access. The violator may petition
the City Engineer for a reconsideration and hearing. A person commits
an offense if the person reinstates MS4 access to premises terminated
pursuant to this section, without the prior approval of the City Engineer.
F. Municipal infraction. In the event the alleged violator fails to
take the remedial measures set forth in the notice of violation or
otherwise fails to cure the violations described therein within 10
business days of service of the notice of violation, or such greater
period as the Engineering Department shall deem appropriate, the violation
shall constitute a municipal infraction and the violator shall be
fined, not exceeding $1,000 per violation per day, as provided in
Anno. Code of Md., Local Gov't, § 6-102 for each day
the violation remains unremedied after receipt of the notice of violation.
G. Criminal prosecution. Any person who is found guilty of violating
this article shall be guilty of a misdemeanor and shall be subject
to a criminal fine not exceeding $1,000 per violation per day and/or
imprisonment for a period not to exceed six months. Each act of violation
and each day upon which any violation shall occur shall constitute
a separate offense.
Any person aggrieved by the action of any official charged with
the enforcement of this article, as the result of issuance of a written
notice of violation, or an alleged failure to properly enforce the
Article in regard to a specific application, shall have the right
to appeal the action to the City Engineer. The appeal must be filed
in writing within 10 business days from the date of the notice of
violation or determination to the applicant and shall clearly state
the grounds on which the appeal is based. Except in the event of an
emergency, any deadline set forth in the notice of violation shall
be stayed upon the timely filing of an appeal and shall remain stayed
pending the outcome of the appeal.
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 the time frame set in the decision of the City Engineer upholding
the decision of the Engineering Department, then representatives of
the Engineering Department 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.
Within 60 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 cost of abatement within 10 business
days. If the amount due is not paid within a timely manner, as determined
by the decision of the City Engineer, or by the expiration of the
time in which to file an appeal, the cost of abatement shall constitute
a lien on the property for the amount of the cost of abatement and
may be collected in the same manner as City real estate taxes. For
the purpose of collection, the City may include unpaid costs on the
annual tax bill of the property. The unpaid costs shall be collected
in the same manner as ordinary taxes are collected, subject to the
same interest and penalty for nonpayment as provided by law for nonpayment
of City real estate taxes.
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 City may institute injunctive, mandamus or other appropriate
action or proceedings of law to correct violations of this chapter.
Any court of competent jurisdiction shall have the right to issue
temporary or permanent restraining orders, injunctions or mandamus,
or other appropriate forms of relief.
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 City to seek cumulative
remedies. The City is entitled to recover all attorney's fees,
court costs, and other expenses associated with enforcement of this
article, including sampling and monitoring expenses.