[Adopted 2-5-2008]
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 MS4 to the
maximum extent practicable as required by federal and state law. This
article establishes methods for controlling the introduction of contaminants
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 contaminants 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 contaminants into
the MS4.
As used in this article, the following terms
shall have the meanings set forth below:
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 contaminants, prepared periodically by DEC 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.
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 contaminants 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 City of North Tonawanda, Niagara County, New York.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.) and any amendments thereto.
The Common Council of the City of North Tonawanda, Niagara
County, New York.
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.
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,
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 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 illicit 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 § 75-23.
Activities requiring the SPDES permit for discharges from
industrial activities except construction, GP-98-03, as amended or
revised.
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, partnership, firm, company, association,
organization, corporation, district, municipality or other entity.
Sediment or a water quality measurement that addresses sediment
(such as total suspended solids, turbidity or siltation) and any other
contaminant that has been identified as a cause of impairment of any
water body that will receive a discharge from the land development
activity.
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 City 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 City 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 City'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 City'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 City 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 City'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
City 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 City 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 DEC that authorizes the discharge of contaminants
to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
An employee or officer of the City appointed by the Common
Council 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.
Total maximum daily load.
The maximum amount of a contaminant 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 contaminant.
Water that is not stormwater, is contaminated with contaminants
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
City.
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.
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:
A.
The following discharges are exempt from discharge
prohibitions established by this article, unless DEC or the City has
determined them to be substantial contributors of contaminants: 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, 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 contaminants. Such exempt discharges shall
be made in accordance with an appropriate plan for reducing contaminants.
B.
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.
C.
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.
D.
The prohibition of illicit 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 DEC, 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.
A.
The construction, use, maintenance or continued existence
of illicit connections to the MS4 is prohibited.
B.
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.
C.
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 City'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 City'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 City's
MS4 SPDES stormwater discharge permit authorization.
Best management practices. Where the SMO has identified illicit discharges or an activity contaminating stormwater, as defined in § 75-25, the City 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/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 § 75-25, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of contaminant(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 City 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/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 City 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 City 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.
[Amended 12-17-2013]
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 illicit discharges or contaminants 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 City 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 City 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. [NOTE: Also see § 75-5J(3), Special procedures relating to industrial wastes: accidental discharge/slug control plan, for further information regarding spills.]
A.
Notice of violation. 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:
(1)
The elimination of illicit connections or discharges;
(2)
That violating discharges, practices, or operations
shall cease and desist:
(3)
The abatement or remediation of stormwater pollution
or contamination hazards and the restoration of any affected property;
(4)
The performance of monitoring, analyses, and reporting;
(5)
That the City will seek civil remedies or criminal penalties, including the imposition of a criminal fine, as provided in § 75-31B; and
(6)
The implementation of source control or treatment
BMPs. 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 any
of the provisions of this article shall be guilty of a violation punishable
by a fine not exceeding $250 and/or imprisonment for a period not
to exceed 15 days.
A.
Any person receiving a notice of violation may appeal
the determination of the SMO to the Common Council 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.
B.
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.
C.
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 or she may be given alternative remedies in lieu of a civil penalty,
upon recommendation of the City 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.
