[HISTORY: Adopted by the Town Board of the Town of North Salem 3-27-2007
by L.L. No. 4-2007; amended in its entirety 12-26-2007
by L.L. No. 9-2007. Subsequent amendments noted where applicable.]
This chapter shall be known as the "Illicit Discharge Law" of the Town
of North Salem.
The purpose of this chapter is to provide for the health, safety, and
general welfare of the citizens of the Town of North Salem 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
chapter 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 (MS4s). The objectives of this
chapter 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 chapter; 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 chapter, the following terms shall have the meanings
indicated:
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.
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 herein.
Activities requiring a SPDES Permit for Discharges From Industrial
Activities Except Construction, GP-98-03, as amended or revised.
Municipal separate storm sewer system.
The Town of North Salem or the Town.
A conveyance or system of conveyances (including roads with drainage
systems, municipal streets, catch basins, curbs, gutters, ditches, man-made
channels, or storm drains):
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 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, 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.
The conditions that may affect the municipality's MS4 permit
as follows:
Discharge compliance with water quality standards: The condition that
applies where a municipality 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 municipality 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 the NYSDEC that authorizes the discharge of pollutants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
The Town Highway Superintendent or other public official(s) designated
by the Town to enforce this chapter. The SMSO may also be designated by the
Town to inspect stormwater management practices, systems and related improvements.
Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells,
rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic
Ocean within the territorial seas of the State of New York and all other bodies
of surface water, natural or artificial, inland or coastal, fresh or salt,
public or private (except those private waters that do not combine or effect
a junction with natural surface or undergroundwaters), which are wholly or
partially within or bordering the state or within its jurisdiction. Storm
sewers and waste treatment systems, including treatment ponds or lagoons,
which also meet the criteria of this definition, are not waters of the state.
This exclusion applies only to man-made bodies of water which neither were
originally created in waters of the state (such as a disposal area in wetlands)
nor resulted from impoundment of waters of the state.
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 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.
Water that is not stormwater, is contaminated with pollutants and
is or will be discarded.
See "surface waters of the State of New York."
This chapter shall apply to all water entering the MS4 generated on
any developed and undeveloped lands unless explicitly exempted by an authorized
enforcement agency.
The Stormwater Management System Operator(s) [SMSO(s)] shall administer,
implement, and enforce the provisions of this chapter. Such powers granted
or duties imposed upon the authorized enforcement official may be delegated
in writing by the SMSO as may be authorized by the Town.
A.
No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in § 194-6A(1), below. The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as set forth below:
(1)
The following discharges are exempt from discharge prohibitions
established by this chapter, unless the 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 drains, uncontaminated pumped groundwater, foundation or footing
drains, roof 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 SMSO 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 SMSO may deem
appropriate to protect such life and property while reasonably maintaining
the purpose and intent of this chapter.
(3)
Dye testing in compliance with applicable state and local
laws is an allowable discharge, but requires a verbal notification to the
SMSO prior to the time of the test.
(4)
The prohibition 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 the 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.
No person shall allow or create an illicit connection
to or cause an illicit connection to the MS4.
(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 chapter
if the person connects a line conveying sewage to the Town's MS4 or allows
such a connection to continue.
Activities that are subject to the requirements of this section are
those types of activities that:
A.
Notice of violation.
(1)
When the Town's SMSO finds that a person has violated
a prohibition or failed to meet a requirement of this chapter, he/she may
order compliance by written notice of violation to the responsible person(s).
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 are 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.
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 permit authorization, that person shall take all reasonable actions
to properly respond to such notification and to correct such activities such
that he or she no longer causes or contributes to violations of the Town's
MS4 SPDES permit authorization in accordance with the procedures herein.
C.
The following notification and response procedures shall
be followed if illicit discharges or connections or activities contaminating
stormwater are identified:
(1)
The SMSO shall provide notification by certified or registered
mail, return receipt requested, and shall file a copy of the notice with Town
Clerk within five days of identification of an illicit discharge, connection
or an activity contaminating stormwater.
(2)
A written response shall be provided from the person
notified within five days of receipt of the notice of violation providing
a brief description of the intended remedy to the violation.
(3)
A detailed response and related plans showing the proposed
remedy to the violation shall be prepared by the violator or his authorized
representative, with the assistance of a competent professional, and shall
be submitted to the SMSO within 21 days of the receipt of the notice along
with any required forms and payment of required fees as follows:
(a)
Additional copies of the response and plans shall be
provided as required by the SMSO.
(b)
The proposed remedy shall address the purposes and intent
of this chapter, appropriate BMPs, and all pertinent requirements and standards
contained in this chapter.
(c)
A copy of any other applications for land disturbance
or development activities on the site, including stormwater permits, and any
other applicable federal, state and local permits, shall be provided.
(d)
The proposal shall include a reasonable timeline for
completion of the remedial activities.
(4)
A review of the response and plans shall be conducted
by the SMSO, or an authorized representative of the SMSO, and as deemed necessary,
the Town's Consulting Engineer and other officials or representatives
of the Town.
(5)
An on-site evaluation of proposed remedy shall be conducted
by the SMSO, or an authorized representative of the SMSO, and as deemed necessary,
the Town's Consulting Engineer and other reviewers.
(6)
The detailed response and plans shall be revised and
resubmitted for additional review, including any necessary reports or studies.
The submitted materials shall be revised as requested by the SMSO or his authorized
representative, the Town's Consulting Engineer and other reviewers until
all concerns have been addressed.
(7)
The SMSO shall provide authorization to proceed with
the proposed remedy, including a specific timeline for completion of BMPs
and all related improvements.
(8)
The SMSO may require the violator to post a bond to cover
the cost of completion of the authorized remedy. The bond shall be an amount
recommended by the Town's Consulting Engineer to be sufficient to insure
the completion of the authorized remedy and shall specify completion of the
remedy within a period of time fixed by the Town Board and not exceeding one
year. The bond shall be a surety, cash or savings account bond or letter of
credit with security acceptable to and approved by the Town Board as to form,
sufficiency and manner of execution and upon recommendation of the Town Attorney.
The bond may be extended for one year upon recommendation of the SMSO and
the Town's Consulting Engineer and approval by the Town Board.
(9)
Inspection of the site shall be conducted by the SMSO,
his authorized representative, or the Town's Consulting Engineer during
and after site remediation.
D.
In addition to or as an alternative to any penalty provided
herein or by law, any person who violates the provisions of this chapter 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 $1000 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 chapter 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.
Where the SMSO has identified illicit discharges or illicit connections or activities contaminating stormwater, as defined in § 194-3 and as set forth in §§ 194-6 and 194-7 above, the Town may require implementation of best management practices (BMPs) to control those illicit discharges, connections and activities. Similarly, in response to a notice of violation, BMPs shall be employed, as necessary.
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 connection, or an activity
contaminating stormwater, 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 section.
The following provisions apply to illicit discharges resulting from
emergency situations:
A.
The SMSO 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 SMSO 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 SMSO may
take such steps as deemed necessary to prevent or minimize damage to the MS4
or to minimize danger to persons. Any costs related to the emergency actions
taken by the SMSO shall be the responsibility of the violator.
B.
Suspension due to the detection of illicit discharge.
Any person discharging to the Town's MS4 in violation of this chapter
may have his or her MS4 access terminated if such termination would abate
or reduce an illicit discharge. The SMSO will notify a violator in writing
of the proposed termination of its MS4 access and the reasons therefor. The
violator may petition the SMSO for a reconsideration and hearing. Access may
be granted by the SMSO 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 SMSO 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 SMSO.
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.
This section applies to all facilities that the SMSO must inspect to
enforce any provision of this chapter, 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 chapter.
A.
The SMSO shall be permitted to enter and inspect facilities
subject to regulation under this chapter as often as may be necessary to determine
compliance with this chapter. If a discharger has security measures in force
which require proper identification and clearance before entry into its premises,
the discharger shall make the necessary arrangements to allow access to the
SMSO.
B.
Facility operators shall allow the SMSO 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 chapter.
C.
The Town shall have the right to set up on any facility
subject to this chapter such devices as are necessary in the opinion of the
SMSO to conduct monitoring and/or sampling of the facility's stormwater
discharge.
D.
The Town has the right to require the facilities subject
to this chapter to install monitoring equipment as is reasonably necessary
to determine compliance with this chapter. 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.
E.
Any unreasonable delay in allowing the Town access to
a facility subject to this chapter is a violation of this chapter. A person
who is the operator of a facility subject to this chapter commits an offense
if the person denies the Town reasonable access to the facility for the purpose
of conducting any activity authorized or required by this chapter.
F.
If the SMSO has been refused access to any part of the
premises from which a discharge is occurring, and the SMSO is able to demonstrate
probable cause to believe that there may be a violation of this chapter, or
that there is a need to inspect and/or sample as part of a routine inspection
and sampling program designed to verify compliance with this chapter or any
order issued hereunder, then the SMSO 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 (NYSDEC Spill Hotline:
1-800-457-7362). 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.
Any person receiving a notice of violation may appeal the determination
of the SMSO 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 SMSO, then the SMSO 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.
Any costs incurred by the Town to abate the violation and/or restore the affected
property or properties shall be the sole responsibility of the discharger.
B.
If refused access to the subject private property, the
SMSO 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 SMSO 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 chapter. If a person has violated
or continues to violate the provisions of this chapter, the SMSO 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 chapter,
he/she may be eligible for alternative remedies in lieu of a civil penalty,
upon recommendation of the Town Attorney and concurrence of the SMSO, 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 chapter is a threat to public health, safety, and welfare, and is
declared and deemed a nuisance, and may be summarily abated or restored at
the violator's expense, and/or a civil action to abate, enjoin, or otherwise
compel the cessation of such nuisance may be taken.
The remedies listed in this chapter are not exclusive of any other remedies
available under any applicable federal, state or local law and it is within
the discretion of the authorized enforcement agency to seek cumulative remedies.
