Chapter 86A: Prohibition of Illicit Discharges and Connections to the Town of Brookhaven Municipal Separate Storm Sewer System
[HISTORY: Adopted by the Town Board of the Town of Brookhaven 1-22-2008 by L.L. No. 2-2008, effective 1-30-2008. Amendments noted where applicable.]
Flood damage prevention — See Ch. 33.
Grading — See Ch. 35.
Coastal erosion hazard areas — See Ch. 76.
Water resources — See Ch. 78.
Wetlands and waterways — See Ch. 81.
Zoning — See Ch. 85.
Stormwater management and erosion control — See Ch. 86.
Subdivision regulations — See Ch. SR.
§ 86A-8 Requirement to prevent, control, and reduce stormwater pollutants by use of best management practices.
The purpose of this Chapter is to provide for the health, safety, and general welfare of the residents of and general public within the Town of Brookhaven 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. The objectives of this Chapter are as follows:
To meet the requirements of the SPDES General Permit for Stormwater Discharges from MS4s, Permit No. GP-02-02 or as amended or revised;
To regulate the contribution of pollutants to the MS4 since such systems are not designed to accept, process or discharge nonstormwater wastes;
To prohibit illicit connections, activities and discharges to the MS4;
To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this Chapter; and
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.
The terms used under this Chapter shall have the meanings as set forth in this section.
- BEST MANAGEMENT PRACTICES (BMPs)
- Management practices designed to prevent or reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters, or stormwater conveyance systems; 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. Such practices may include pollution prevention and educational practices, maintenance procedures, treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.
- CLEAN WATER ACT
- The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), and any subsequent amendments thereto.
- CONSTRUCTION ACTIVITY
- 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.
- HAZARDOUS MATERIALS
- Material, including any substance, waste, or combination thereof, which because of its quantity, concentration, 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.
- ILLICIT CONNECTIONS
- Any surface or subsurface drain or conveyance that allows an illegal discharge to enter the MS4, including, but not limited to:
- A. Conveyances that 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
- B. A 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.
- ILLICIT DISCHARGE
- Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 86A-5 of this Chapter.
- INDUSTRIAL ACTIVITY
- Activities requiring the SPDES Permit for Discharges from Industrial Activities, except construction, GP-98-03, as amended or revised.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
- A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that is owned or operated by the Town and designed or used for collecting or conveying stormwater; the MS4, as defined, is not a combined sewer or part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2.
- NONSTORMWATER DISCHARGE
- Any discharge to the MS4 that is not composed entirely of stormwater.
- Any individual, owner, entity, corporation, agent, company, parent company, subsidiary, limited-liability company, substantially owned affiliated-entity, successor, partnership, joint venture, association, legal representative, agent, or any other form of doing business.
- A substance that may cause or might reasonably be expected to cause pollution of the waters of the state in contravention of the standards, including, but not limited to: 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;
- Any building, lot, parcel of land, or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips.
- A. Discharge compliance with water quality standards: The condition that applies where a municipality has been notified that the discharge of stormwater authorized under its 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 municipality must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
- B. 303(d) listed waters: The condition in the municipality'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.
- C. Total maximum daily load (TMDL) strategy: The condition in the municipality's MS4 permit where a TMDL including requirements for control of stormwater discharges has been approved by the 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.
- D. The condition in the municipality's MS4 permit that applies if a TMDL is approved in the future by the EPA for any water body or watershed into which an MS4 discharges. Under this condition, the municipality 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 municipality 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.
- STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by the Department that authorizes the discharge of pollutants to waters of the state.
- Natural discharge, which includes rainwater, surface runoff, snowmelt and drainage.
- STORMWATER MANAGEMENT OFFICER (SMO)
- An employee or officer designated by the Town to accept and review stormwater pollution prevention plans, forward the plans to the applicable board and inspect stormwater management practices.
- 303(d) LIST OF IMPAIRED WATERS
- NYSDEC published list, and any amendments thereto, of all surface waters in the State for which beneficial uses of the water (i.e., drinking, recreation, aquatic habitat, and industrial) are impaired by pollutants, as required by Section 303(d) of the Federal Clean Water Act. 303(d) listed waters include 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 (TMDL)
- The maximum amount of a pollutant 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, which is contaminated with pollutants and is or will be discarded.
The requirements under this chapter shall be applicable to all water entering the MS4 generated on any developed and undeveloped lands, unless explicitly exempted by an authorized enforcement agency.
The Commissioner of the Department of Planning, Environment and Land Management (PELM) or his/her authorized designee shall serve as the Stormwater Management Officer, as defined under this chapter.
The Stormwater Management Officer(s) [SMO(s)] shall be authorized to administer, implement, and enforce the provisions of this chapter.
Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater, except as provided herein. The commencement, conduct or continuance of any illicit discharge to the MS4 is prohibited except as described herein.
Exceptions to discharge prohibitions. The following discharges are exempt from discharge prohibitions established by this chapter, unless the discharges are determined 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, unchlorinated 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, as approved in writing by the SMO.
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 chapter.
Dye testing in compliance with applicable State and local laws, provided the SMO receives written notification of the test location and duration 48 hours prior to the discharge.
Discharge authorized pursuant to 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.
The following illicit connections shall be prohibited:
The construction, use, maintenance or continued existence of illicit connections to the MS4.
This prohibition expressly includes, without limitations, prior illicit connections, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.
A person shall be in violation of this chapter if the person connects a line conveying sewage to the municipality's MS4, or allows such a connection to continue.
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 correct such activities such that he or she no longer causes or contributes to violations of the municipality's MS4 SPDES permit authorization.
§ 86A-8 Requirement to prevent, control, and reduce stormwater pollutants by use of best management practices.
Best Management Practices. Where the SMO has identified illicit discharges under this chapter or activities contaminating stormwater, the SMO may require implementation of best management practices (BMPs) to control those illicit discharges and activities, which may include the following:
The owner or operator of a commercial or industrial establishment to 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.
Any person responsible for a property or premises which is, or may be, the source of an illicit discharge or an activity contaminating stormwater to implement, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
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 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 hazardous conditions, which may adversely affect the health, safety, welfare, and property of Town residents and the general public.
Termination due to the detection of illicit discharge. Any person discharging to the Town's MS4 in violation of this chapter 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. The SMO may grant access 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 Town prior to the allowing of discharges to the MS4.
Applicability. This section applies to all facilities that the SMO 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. The SMO is authorized to make or cause to be made inspections, to determine compliance with the provisions of this chapter and to determine the cause of illicit discharge in order to safeguard the health, safety, and welfare of the Town residents and the general public. The SMO or his/her designated representative is authorized to enter, upon the consent of the owner or facility operator, any premises at any reasonable time or at such other time as may be necessary in the event of an emergency, without the consent of the owner or facility operator, for the purpose of performing his/her duties under this chapter.
Access to facilities.
The SMO 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 SMO.
Facility operations and/or property owners 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 chapter.
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 SMO to conduct monitoring and/or sampling of the facility's stormwater discharge.
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.
If the SMO has been refused access to any part of the premises from which stormwater is discharged, and the SMO has reasonable cause to believe that a violation of this chapter has occurred, 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 SMO may seek issuance of a search warrant from any court of competent jurisdiction. The refusal to allow access to any part of the premises shall be presumptive evidence that a violation exists.
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 results or may result in illegal discharges or pollutants discharging into the MS4, said person shall take all necessary steps to ensure the source and discovery, containment, and cleanup of such release. In the event of such a release of hazardous materials, said person shall immediately notify NYSDEC of the occurrence via emergency dispatch services, 911. In the event of a release of nonhazardous materials, said person shall notify the SMO in person or by telephone or facsimile no later than the next business day. Notifications in person, by telephone, or facsimile shall be confirmed by written notice addressed and mailed to the SMO 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.
Notice of violation.
In the event of a violation of this chapter, the SMO may order compliance and issue a written notice of violation, to be served personally or by certified mail, to the violator and the property owner as shown on the last preceding assessment roll of the Town of Brookhaven.
The notice of violation shall contain the following:
The location of the violation;
A statement specifying the nature of the violation;
A description of the corrective measures necessary to bring remedy or abate the illicit discharge, which may include restoration of the property, and a time schedule for the completion of such remedial action;
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
A statement that the determination of violation may be appealed to the SMO by filing a written notice of appeal within 15 days of service of notice of violation.
The notice of violation may further order compliance, which may include without limitation the following:
The elimination of illicit connections or discharges;
That violating discharges, practices, or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property. 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 assessed against the property;
The performance of monitoring, analyses, and reporting;
Payment of a fine; and
The implementation of source control or treatment BMPs.
Any person who shall violate any provision of this chapter shall be guilty of a violation punishable by a fine not exceeding $500 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 $500 nor more than $750 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 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.
Any person receiving a notice of violation may appeal the determination of the SMO in writing within 15 days of its issuance. The appeal notice shall be directed to the SMO. A hearing officer, as designated by the Director of Environmental Protection and the Town Attorney, shall hear the appeal within 30 days after the filing of the appeal and, within five business days of making his/her decision, issue a decision by certified mail or personal service to the violator and property owner. If the original notice of violation is sustained, the SMO shall issue an order, to be served by certified mail or personal service, which shall state the corrective measures to be taken and required date of completion of the corrective measures. The filing of the appeal shall not stay or prevent the Town from taking all necessary emergency corrective measures.
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 hearing officer's decision 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, and the cost thereof shall be a charge assessed against the property and lands to be collected in the same manner as real property taxes.
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 and/or property owner, and shall be a charge assessed the property and lands to be collected in the same manner as real property taxes.
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 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 any other available remedy at law or as provided under this chapter, the Town may institute a suit in equity, injunction relief, to restrain, correct or abate such violations of this chapter.
Any provision contained in the Town Code to the contrary notwithstanding, the Town Attorney, or his/her designee, in consultation with the Stormwater Management Officer, in addition to or in lieu of seeking criminal penalties or seeking to restrain or enjoin activity in violation of this chapter, may enter into a civil compromise, whereby the person who committed such violation agrees to pay to the Town a civil penalty in an agreed amount. The payment of a civil penalty must be made in conjunction with an agreement on consent whereby the violator agrees to take steps to comply with the requirements under this chapter.
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 SMO, upon a determination that:
Alternative remedies may consist of one or more of the following:
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 statute, law and/or rule and regulation and it is within the discretion of the Town to seek cumulative remedies.
If any clause, sentence, paragraph, subdivision, section, or part of this chapter or the application thereof to any person, individual, corporation, firm, partnership, entity, or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this chapter, or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such order or judgment shall be rendered.