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; amended in its entirety 3-22-2018 by L.L. No. 7-2018, effective 3-29-2018. Subsequent 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.
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 non-stormwater 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-0-15-003 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 non-stormwater wastes;
To prohibit illicit connections, activities and discharges to the MS4;
To ensure all stormwater runoff is contained on-site by approved drainage systems or natural drainage, except where otherwise approved by an authorized body;
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 General Permit for Stormwater Discharges from Construction Activity, GP-0-15-002, 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.
- 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 runoff or subsurface drain or conveyance that allows an illegal discharge to enter the MS4 or private property, including, but not limited to:
- A. Conveyances that allow any non-stormwater discharge including treated or untreated sewage, process wastewater, wash water, or water conveying solids 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 or private property, which has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency.
- ILLICIT DISCHARGE
- Any direct or indirect non-stormwater 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 as defined by the SPDES Multi-Sector General Permit, GP-0-12-001, 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.
- NON-STORMWATER DISCHARGE
- Any discharge, through overland flow or direct conveyance, to the MS4 that is not composed entirely of stormwater.
- Any individual, owner, lease holder, 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, soil, industrial, municipal or agricultural waste, and ballast discharged into water.
- POLLUTANT OF CONCERN
- Sediment or a water quality measurement that addresses sediment (such as total suspended solids, turbidity or siltation) or any other pollutant, including, but not limited to, nitrogen, phosphorus or pathogens, that have been identified as a cause of impairment to 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.
- PROPERTY OWNER
- Any individual, group of individuals, company or corporation having certain rights and duties over the property.
- SECTION 303(d) LISTED 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 fisheries) 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 from date of publishing.
- 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.
- 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 New York State Department of Environmental Conservation (NYSDEC) that authorizes the discharge of pollutants to waters of the state.
- Rainwater, surface runoff, snowmelt and drainage.
- STORMWATER MANAGEMENT OFFICER (SMO)
- The Superintendent of Highways or his/her authorized designee, having responsibility for the overall implementation of the Town's Stormwater Management Program.
- 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.
- A permanent or intermittent stream or other body of water, either natural or man-made, which gathers or carries surface water.
- WATERS OF THE STATE
- Shall be construed to include lakes, bays, sounds, ponds, impounding reservoirs, springs, 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, which are wholly or partially within or bordering the state or within its jurisdiction.
- Any natural or artificial fresh or marine body of water commonly known as a stream, river, creek, lake, pond, estuary, bay, harbor, ocean, or the like. A waterway includes those areas defined as lands under water.
The requirements under this chapter shall be applicable to all water entering the MS4, or private property, generated from any developed or undeveloped lands, unless explicitly exempted by an authorized enforcement agency.
Stormwater runoff, natural drainage, or any means of stormwater conveyance shall not be diverted to other private or public real property, unless previously approved by an authorized body.
Prohibition of illegal discharges. No person or constructed system 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, chlorine-free 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 property owner shall be in violation of this chapter if a connecting line or overland flow conveying wastewater to the municipality's MS4 is found on the property; or allows such a connection to continue.
Upon notification to a property owner that an activity is causing or contributing to violations of the Town's MS4 SPDES permit, that property owner shall take all reasonable actions, within 30 days of written notification, to correct such activities such that the activity no longer causes or contributes to violations of the municipality's MS4 SPDES permit authorization. If special conditions warrant a delay in corrective action, a request for an extension of time must be made in writing to the SMO. The granting of an extension shall not be construed as permission to violate conditions set forth in this chapter, nor shall it be used to set precedent for future extension requests.
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 private property or 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 or to private property 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 property owner 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 responsible party 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 property owner conveying a discharge to the Town's MS4 or private property 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 within 15 calendar days for reconsideration and an abatement conference or 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 property owner commits an offense, punishable by fines, if the property owner 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 Town's MS4 permit and 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 discharge points.
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 an illicit discharge is suspected, 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 or private property, 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 or 911. In the event of a release of nonhazardous materials, said person shall notify the SMO in person, by telephone, or email no later than the next business day. Notifications in person, by telephone, or email shall be confirmed by written notice addressed and mailed to the SMO within three business days of the notification. 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 property owner who violates any provision of this chapter or the conditions imposed by the SMO or his/her designated representative shall, in addition to administrative sanctions, be guilty of a violation punishable by a fine of not less than $1,000 nor more than $3,000 and for a second and each subsequent offense be guilty of a misdemeanor, punishable by a fine of not less than $3,000 nor more than $10,000 or a term of imprisonment of not less than 15 days nor more than six months, or both.
Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense.
Any property owner who violates any provision of this chapter or the conditions imposed by the SMO or his/her designated representative may, in lieu of administrative and criminal sanctions, enter into an order of consent with the SMO. Such order may include:
Equitable relief. The Town of Brookhaven shall have the right to seek equitable relief to restrain any violation or threatened violation of any of the provisions of this chapter.
It shall be unlawful for any person or property owner to violate any provision or fail to comply with any of the requirements of this chapter. If a person or property owner has violated or continues to violate the provisions of this chapter, the SMO may petition for a preliminary or permanent injunction restraining the person or property owner from activities which would create further violations or compelling the person or property owner 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 or property who or which 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 property owner 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, but not be limited to, one or more of the following:
Attendance at compliance workshops;
Storm drain stenciling or storm drain marking;
Beach, river, stream or creek cleanup activities;
Implementing one or more of the recommendations of a watershed management plan that has been adopted by the Town or another agency;
Partaking in an environmental restoration or planting project; or
A payment to the Joseph P. Macchia Environmental Trust Fund in an amount determined by the SMO or Town Attorney in an amount not to exceed $20,000.
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.