[HISTORY: Adopted by the Board of Trustees of the Village of Elmira
Heights as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-2-2007 by L.L. No. 2-2007[1]]
[1]
Editor's Note: This local law was originally designated to be
added as Chapter 218, but was renumbered to maintain the organization of the
Code.
The purpose of this article is to provide for the health, safety, and
general welfare of the citizens of the Village of Elmira Heights, New York
through the regulation of nonstormwater discharges to the municipal separate
storm sewer system (MS4) to the maximum extent practicable as required by
federal and state law. This article establishes methods for controlling the
introduction of pollutants into the MS4 in order to comply with requirements
of the SPDES General Permit for Municipal Separate Storm Sewer Systems. The
objectives of this article are:
A.
To meet the requirements of the SPDES General Permit
for Stormwater Discharges from MS4s, Permit No. GP-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.
In accordance with § 10(1)(ii)(a)(11) of the Municipal Home
Rule Law of the State of New York, the Village of Elmira Heights has the authority
to enact local laws for the protection and enhancement of its physical and
visual environment as well as to promote the health, safety and general welfare
of the Village. The Village of Elmira Heights may include in such local law
provisions for the appointment of any municipal officer, employee(s) or independent
contractor to effectuate, administer and enforce such local law.
This article shall apply to all water entering the MS4 generated on
any developed and undeveloped lands unless explicitly exempted by an authorized
enforcement agency.
Whenever used in this article, unless a different meaning is stated
in a definition applicable to only a portion of this article, the following
terms will have meanings set forth below:
Schedules of activities, prohibitions of practices, general good
housekeeping practices, pollution prevention and educational practices, maintenance
procedures, and other management practices to prevent or reduce the discharge
of pollutants directly or indirectly to stormwater, receiving waters, or stormwater
conveyance systems. BMPs also include treatment practices, operating procedures,
and practices to control site runoff, spillage or leaks, sludge or water disposal,
or drainage from raw materials storage.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
Activities requiring authorization under the SPDES Permit for Stormwater
Discharges From Construction Activity, GP-02-01, as amended or revised. These
activities include construction projects resulting in land disturbance of
one or more acres. Such activities include but are not limited to clearing
and grubbing, grading, excavating, and demolition.
The New York State Department of Environmental Conservation.
A New York State licensed professional engineer or licensed architect.
Any material, including any substance, waste, or combination thereof,
which because of its quantity, concentration, or physical, chemical, or infectious
characteristics may cause, or significantly contribute to, a substantial present
or potential hazard to human health, safety, property, or the environment
when improperly treated, stored, transported, disposed of, or otherwise managed.
Any drain or conveyance, whether on the surface or subsurface, which
allows an illegal discharge to enter the MS4, including but not limited to:
Any conveyances which allow any nonstormwater discharge, including treated
or untreated sewage, process wastewater, and wash water to enter the MS4 and
any connections to the storm drain system from indoor drains and sinks, regardless
of whether said drain or connection had been previously allowed, permitted,
or approved by an authorized enforcement agency; or
Any drain or conveyance connected from a commercial or industrial land
use to the MS4 which has not been documented in plans, maps, or equivalent
records and approved by an authorized enforcement agency.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 192-6A(1) of this article.
Activities requiring the SPDES Permit for Discharges From Industrial
Activities Except Construction, GP-98-03, as amended or revised.
Municipal separate storm sewer system.
A conveyance or system of conveyances (including roads with drainage
systems, municipal streets, catch basins, curbs, gutters, ditches, man-made
channels, or storm drains):
The Village of Elmira Heights.
Any discharge to the MS4 that is not composed entirely of stormwater.
The New York State Department of Environmental Conservation.
The terminus of a storm drain where the contents are released.
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.
Dredged spoil, filter backwash, solid waste, incinerator residue,
treated or untreated sewage, garbage, sewage sludge, grass, brush, leaves,
trees, munitions, chemical wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand and industrial, municipal,
agricultural waste and ballast discharged into water; which may cause or might
reasonably be expected to cause pollution of the waters of the state in contravention
of the standards.
Any building, lot, parcel of land, or portion of land, whether improved
or unimproved, including adjacent sidewalks and parking strips.
Refuse liquids or waste matter.
Discharge compliance with water quality standards: the condition that
applies where the Village of Elmira Heights 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 Village of Elmira Heights
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 Village of Elmira Heights'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 Village
of Elmira Heights'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 Village of Elmira Heights 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 Village of Elmira Heights'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 Village of Elmira
Heights 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 Village of Elmira Heights must, within six months of the
TMDL's approval, modify its stormwater management program to ensure that
reduction of the pollutant of concern specified in the TMDL is achieved.
A permit issued by the NYSDEC that authorizes the discharge of pollutants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
An employee, the municipal engineer or other public official(s) designated
by the Village of Elmira Heights to enforce this article. The SMO may also
be designated by the Village of Elmira Heights to accept and review stormwater
pollution prevention plans, forward the plans to the applicable municipal
board and inspect stormwater management practices. For purposes of this article,
the Stormwater Management Officer shall be the Code Enforcement Officer for
the Village of Elmira Heights.
A list of all surface waters in the state for which beneficial uses
of the water (drinking, recreation, aquatic habitat, and industrial use) are
impaired by pollutants, prepared periodically by the Department as required
by Section 303(d) of the Clean Water Act. 303(d) listed waters are estuaries,
lakes and streams that fall short of state surface water quality standards
and are not expected to improve within the next two years.
Total maximum daily load.
The maximum amount of a pollutant to be allowed to be released into
a water body so as not to impair uses of the water allocated among the sources
of that pollutant.
Water that is not stormwater, is contaminated with pollutants and
is or will be discarded.
Any natural or man-made swale, stream, channel, drain, or culvert
in which waters flow continuously or intermittently.
The Stormwater Management Officer(s) (SMO(s)) shall administer, implement,
and enforce the provisions of this article. For purposes of this article,
the Stormwater Management Officer shall be the Code Enforcement Officer for
the Village of Elmira Heights. 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 Village of Elmira Heights.
A.
Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in Subsection A(1) through (4). The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions
established by this article, unless the Department or the Village of Elmira
Heights has determined them to be substantial contributors of pollutants:
water line flushing or other potable water sources, landscape irrigation or
lawn watering, existing diverted stream flows, rising groundwater, uncontaminated
groundwater infiltration to storm drains, uncontaminated pumped groundwater,
foundation or footing drains, crawl space or basement sump pumps, air- conditioning
condensate, irrigation water, springs, water from individual residential car
washing, natural riparian habitat or wetland flows, dechlorinated swimming
pool discharges, residential street wash water, water from fire-fighting activities,
and any other water source not containing pollutants. Such exempt discharges
shall be made in accordance with an appropriate plan for reducing pollutants.
(2)
Discharges approved in writing by the SMO to protect
life or property from imminent harm or damage, provided that such approval
shall not be construed to constitute compliance with other applicable laws
and requirements, and further provided that such discharges may be permitted
for a specified time period and under such conditions as the SMO may deem
appropriate to protect such life and property while reasonably maintaining
the purpose and intent of this article.
(3)
Dye testing in compliance with applicable state and local
laws is an allowable discharge, but requires a verbal notification to the
SMO prior to the time of the test.
(4)
The prohibition shall not apply to any discharge permitted
under an SPDES permit, waiver, or waste discharge order issued to the discharger
and administered under the authority of the Department, provided that the
discharger is in full compliance with all requirements of the permit, waiver,
or order and other applicable laws and regulations, and provided that written
approval has been granted for any discharge to the MS4.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence
of illicit connections to the MS4 is prohibited.
(2)
This prohibition expressly includes, without limitation,
illicit connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at the time
of connection.
(3)
A person is considered to be in violation of this article
if the person connects a line conveying sewage to the Village of Elmira Heights's
MS4, or allows such a connection to continue.
A.
Activities that are subject to the requirements of this
section are those types of activities that:
B.
Upon notification to a person that he or she is engaged
in activities that cause or contribute to violations of the Village of Elmira
Heights's MS4 SPDES permit authorization, that person shall take all
reasonable actions to correct such activities such that he or she no longer
causes or contributes to violations of the Village's MS4 SPDES permit
authorization.
A.
Suspension due to 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 persons, or to the MS4. The SMO shall notify the
person of such suspension within a reasonable time thereafter in writing of
the reasons for the suspension. If the violator fails to comply with a suspension
order issued in an emergency, the SMO may take such steps as deemed necessary
to prevent or minimize damage to the MS4 or to minimize danger to persons.
B.
Suspension due to the detection of illicit discharge.
Any person discharging to the municipality's MS4 in violation of this
article may have their MS4 access terminated if such termination would abate
or reduce an illicit discharge. The SMO will notify a violator in writing
of the proposed termination of its MS4 access and the reasons therefor. The
violator may petition the SMO for a reconsideration and hearing. Access may
be granted by the SMO if he/she finds that the illicit discharge has ceased
and the discharger has taken steps to prevent its recurrence. Access may be
denied if the SMO determines in writing that the illicit discharge has not
ceased or is likely to recur. A person commits an offense if the person reinstates
MS4 access to premises terminated pursuant to this section without the prior
approval of the SMO.
Any person subject to an industrial or construction activity SPDES stormwater
discharge permit shall comply with all provisions of such permit. Proof of
compliance with said permit may be required in a form acceptable to the Village
of Elmira Heights prior to the allowing of discharges to the MS4.
A.
Applicability. This section applies to all facilities
that the SMO must inspect to enforce any provision of this article, or whenever
the authorized enforcement agency has cause to believe that there exists,
or potentially exists, in or upon any premises any condition which constitutes
a violation of this article.
B.
Access to facilities.
(1)
The SMO shall be permitted to enter and inspect facilities
subject to regulation under this article as often as may be necessary to determine
compliance with this article. If a discharger has security measures in force
which require proper identification and clearance before entry into its premises,
the discharger shall make the necessary arrangements to allow access to the
SMO.
(2)
Facility operators shall allow the SMO ready access to
all parts of the premises for the purposes of inspection, sampling, examination
and copying of records as may be required to implement this article.
(3)
The Village of Elmira Heights 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 Village of Elmira Heights has the right to require
the facilities subject to this article to install monitoring equipment as
is reasonably necessary to determine compliance with this article. The facility's
sampling and monitoring equipment shall be maintained at all times in a safe
and proper operating condition by the discharger at its own expense. All devices
used to measure stormwater flow and quality shall be calibrated to ensure
their accuracy.
(5)
Unreasonable delays in allowing the Village of Elmira
Heights 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 Village of Elmira Heights reasonable
access to the facility for the purpose of conducting any activity authorized
or required by this article.
(6)
If the SMO has been refused access to any part of the
premises from which stormwater is discharged, and he/she is able to demonstrate
probable cause to believe that there may be a violation of this article, or
that there is a need to inspect and/or sample as part of a routine inspection
and sampling program designed to verify compliance with this article or any
order issued hereunder, then the SMO may seek issuance of a search warrant
from any court of competent jurisdiction.
A.
Best management practices. Where the SMO has identified illicit discharges as defined in § 192-4 or activities contaminating stormwater as defined in § 192-7, the Village of Elmira Heights may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
(1)
The owner or operator of a commercial or industrial establishment
shall provide, at their own expense, reasonable protection from accidental
discharge of prohibited materials or other wastes into the MS4 through the
use of structural and nonstructural BMPs.
(2)
Any person responsible for a property or premises, which is, or may be, the source of an illicit discharge as defined in § 192-4 or an activity contaminating stormwater as defined in § 192-7, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
B.
Compliance with all terms and conditions of a valid SPDES
permit authorizing the discharge of stormwater associated with industrial
activity, to the extent practicable, shall be deemed compliance with the provisions
of this section.
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 addition, such
person shall notify the Village of Elmira Heights of such release of hazardous
materials in person or by telephone or facsimile no later than the next business
day. In the event of a release of nonhazardous materials, said person shall
notify the Village of Elmira Heights 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 Village of
Elmira Heights 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 Village of Elmira Heights's SMO finds that
a person has violated a prohibition or failed to meet a requirement of this
article, he/she may order compliance by written notice of violation to the
responsible person via certified mailing. 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)
Payment of a fine; 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 of not
less than $50 but not exceeding $350 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 of not less than $350 nor more than $700
or imprisonment for a period not to exceed 15 days, 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 of not less than $700 nor more than $1,000
or imprisonment for a period not to exceed 15 days, or both. Each week's
continued violation shall constitute a separate additional violation.
C.
Alternate penalties. Where a person has violated a provision
of this article, he/she may be eligible for alternative remedies in lieu of
a civil penalty, upon recommendation of the Village Attorney and concurrence
of the Village Stormwater Management Officer (SMO), where:
Any person receiving a notice of violation may appeal the determination
of the SMO to the Village of Elmira Heights Zoning Board of Appeals 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 Village 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 Village's Zoning
Board of Appeals 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.
Within 30 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 30 days of receiving notification of the cost of the abatement.
If the amount due is not paid within a timely manner as determined by the
decision of the Village Board of Trustees or by the expiration of the time
in which to file a protest; the charges shall become a special assessment
against the property and shall constitute a lien on the property for the amount
of the assessment. Any person violating any of the provisions of this article
shall become liable to the Village by reason of such violation. Interest at
the rate of 9% per annum shall be assessed on the balance beginning on the
31st day following completion of the abatement. Any unpaid abatement charges
shall be added to the tax bill for the subject property.
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.
In addition to the enforcement processes and penalties provided, any
condition caused or permitted to exist in violation of any of the provisions
of this article is a threat to public health, safety, and welfare, and is
declared and deemed a nuisance, and may be summarily abated or restored at
the violator's expense, and/or a civil action to abate, enjoin, or otherwise
compel the cessation of such nuisance may be taken.
The remedies listed in this article are not exclusive of any other remedies
available under any applicable federal, state or local law and it is within
the discretion of the authorized enforcement agency to seek cumulative remedies.
The provisions of this article are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this article 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
article.
Approvals issued pursuant to this article do not relieve the applicant
of the responsibility to secure required permits or approvals for activities
regulated by any other applicable law, code, rule, act, or ordinance.
This article shall be in full force and effective upon filing with the
office of the Secretary of State.
