[HISTORY: Adopted by the Town Board of the Town of Evans as indicated
in article histories. Amendments noted where applicable.]
[Adopted 12-19-2007 by L.L. No. 7-2007]
The purpose of this article is to provide for the health, safety, and
general welfare of the citizens of the Town of Evans through the regulation
of nonstormwater discharges to the 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 the requirements
of the SPDES General Permit for MS4s. The objectives of this article are:
A.
To meet the requirements of the SPDES General Permit
for Stormwater Discharges from MS4s, Permit No. GP-02-02, 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.
As used in this article, the following terms shall have the meanings
indicated below:
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.
Any activity requiring authorization under the SPDES Permit for Stormwater
Discharges From Construction Activity, GP-02-01, as amended or revised, including
construction projects resulting in land disturbance of one or more acres.
Construction 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 drain or conveyance, whether on the surface or subsurface, which
allows an illegal discharge to enter the MS4, including but not limited to:
Any conveyance which allows any nonstormwater discharge including treated
or untreated sewage, process wastewater, and wash water to enter the MS4 and
any connection to the storm sewer 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 § 170-4 of this article.
Activities requiring coverage under the SPDES Multi-Sector General
Permit for Stormwater Discharges Associated with Industrial Activity, GP-0-06-002,
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 sewers):
Any discharge to the MS4 that is not composed entirely of stormwater.
The New York State Department of Environmental Conservation.
Any individual, association, organization, partnership, firm, corporation,
or other entity recognized by law.
Dredged spoil, filter backwash, solid wastes, 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, and agricultural waste and ballast discharged
into water, any of which may cause or might reasonably be expected to cause
pollution of the waters of the state in contravention of water quality standards.
Any building, lot, parcel of land, or portion of land, whether improved
or unimproved, including adjacent sidewalks and parking strips.
Discharge compliance with water quality standards: the condition that
applies where the Town 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 Town 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 Town'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 Town'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 Town 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 Town'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 Town 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 Town 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 NYSDEC that authorizes the discharge of pollutants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
An employee or officer of the Town of Evans appointed by the Town
Board to enforce this article. The SMO shall, within the time prescribed by
law, obtain such basic training, in-service training, advanced in-service
training and other training as the State of New York shall require for code
enforcement personnel.
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 NYSDEC 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.
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.
The Town of Evans, Erie County, New York.
Water that is not stormwater, is contaminated with pollutants and
has been or will be discarded.
A.
Applicability. This article shall apply to all water
entering the MS4 generated on any developed or undeveloped lands unless explicitly
exempted by an authorized enforcement agency.
B.
Responsibility for administration. The SMO 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 Town.
C.
Conflict. Where the conditions imposed by any provisions
of this article are either more restrictive or less restrictive than comparable
conditions imposed by any other applicable law, ordinance, resolution, rule
or regulation of any kind, the regulations which are more restrictive and
impose higher standards or requirements shall govern.
A.
Prohibition of illicit discharges. No person shall discharge
or cause to be discharged into the MS4 any materials other than stormwater
except as provided below. The commencement, conduct or continuance of any
illicit 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 NYSDEC or the Town 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 sewers, uncontaminated pumped groundwater, foundation or footing
drains, 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 local
laws is an allowable discharge, but requires a verbal notification to the
SMO prior to the time of the test.
(4)
The prohibition of illegal discharges 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 NYSDEC,
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 MS4 or allows such a
connection to continue.
B.
Such activities include improper management of pet waste
or any other activity that causes or contributes to violations of the Town'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 Town's MS4 SPDES
stormwater discharge 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 Town's MS4 SPDES stormwater discharge permit
authorization.
Where the SMO has identified illicit discharges or an activity contaminating stormwater, as defined in § 170-5 of this article, the Town may require implementation of BMPs to control those illicit discharges and activities.
A.
The owner or operator of a commercial or industrial establishment
shall provide, at his or her own expense, reasonable protection from accidental
discharge of prohibited materials or other wastes into the MS4 through the
use of structural and nonstructural BMPs.
B.
Any person responsible for a property or premises, which is, or may be, the source of an illicit discharge, or an activity contaminating stormwater, as defined in § 170-5 of this article, 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.
C.
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 article.
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 Town
prior to the allowing of discharges to the MS4.
A.
Illicit discharges in emergency situations. 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 people, 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 people.
B.
Suspension due to the detection of illicit discharge.
Any person discharging to the MS4 in violation of this article may have his
or her 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 reoccur.
A person commits an offense if the person reinstates MS4 access to the premises
terminated pursuant to this article without the prior approval of the SMO.
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 Town 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 Town 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)
An unreasonable delay in allowing the SMO 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 SMO 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.
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. 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 Town 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 Town within three business days of the telephone 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.
Notice of violation.
(1)
When the SMO finds that a person has violated a prohibition
or failed to meet a requirement of this article, he or she may order compliance
by written notice of violation to the responsible person. Such notice may
require, without limitation:
(a)
The elimination of illicit connections or discharges;
(b)
That violating discharges, practices, or operations shall
cease and desist;
(c)
The abatement or remediation of stormwater pollution
or contamination hazards and the restoration of any affected property;
(d)
The performance of monitoring, analyses, and reporting;
(e)
That the Town will seek civil remedies or criminal penalties, including the imposition of a criminal fine, as provided in § 170-11B; and
(f)
The implementation of source control or treatment BMPs.
(2)
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.
B.
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 Town Board 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.
A.
Where a person has violated a provision of this article,
he/she may be given alternative remedies in lieu of a civil penalty, upon
recommendation of the Town Attorney and concurrence of the SMO, 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.
