[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
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.