[HISTORY: Adopted by the Town Board of the
Town of Kent 1-14-2008 by L.L. No. 1-2008. Amendments noted where
applicable.]
The purpose of this chapter is to provide for
the health, safety, and general welfare of the citizens of the Town
of Kent 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 intent of this chapter
is to meet the following objectives:
A.
To meet the requirements of the SPDES General Permit
for Stormwater Discharges From MS4s, Permit No. GP-02-02, 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.
Whenever used in this chapter, unless a different
meaning is stated in a definition applicable only to a portion of
this chapter, the following terms will have the meanings set forth
below:
Schedules of activities, prohibitions of practices, general
good housekeeping practices, pollution prevention and educational
practices, maintenance procedures, and other management practices
to prevent or reduce the discharge of pollutants directly or indirectly
to stormwater, receiving waters, or stormwater conveyance systems.
BMPs also include treatment practices, operating procedures, and practices
to control site runoff, spillage or leaks, sludge or water disposal,
or drainage from raw materials storage.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
Activities requiring authorization under the SPDES Permit
for Stormwater Discharges From Construction Activity, NYSDES SPDES
General Construction Permit GP-02-01, as amended or revised. These
activities include construction projects resulting in land disturbance
equal to or greater than 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
(NYSDEC).
New York State Licensed Professional Engineer or Licensed
Architect.
Any material, including any substance, waste, or combination
thereof, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may cause, or significantly
contribute to, a substantial present or potential hazard to human
health, safety, property, or the environment when improperly treated,
stored, transported, disposed of, or otherwise managed.
Any drain or conveyance, whether on the surface or subsurface,
which allows an illegal discharge to enter the MS4, including but
not limited to:
Any conveyances which allow any nonstormwater
discharge including treated or untreated sewage, process wastewater,
and wash water to enter the MS4 and any connections to the storm drain
system from indoor drains and sinks, regardless of whether said drain
or connection had been previously allowed, permitted, or approved
by an authorized enforcement agency; or
Any drain or conveyance connected from a commercial
or industrial land use to the MS4 which has not been documented in
plans, maps, or equivalent records and approved by an authorized enforcement
agency.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 43-6 of this chapter.
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 drains):
The Town of Kent.
Any discharge to the MS4 that is not composed entirely of
stormwater.
Any individual, association, organization, partnership, firm,
corporation or other entity recognized by law and acting as either
the owner or 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.
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 standards. Under this
condition, the municipality must take whatever reasonable and appropriate
action is necessary to ensure future discharges do not cause or contribute
to a violation of water quality standards.
303(d) listed waters: the condition in the municipality's
MS4 permit that applies where the MS4 discharges to a 303(d) listed
water body or watercourse. Under this condition, the stormwater management
program must ensure no increase of the listed pollutant of concern
to the 303(d) listed water body or watercourse.
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 (SWMP) to ensure that reduction
of the pollutant of concern specified in the TMDL is achieved.
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 (SWMP) to ensure that reduction of the pollutant of concern
specifified in the TMDL is achieved.
A permit issued by the Department that authorizes the discharge
of pollutants to waters of the state.
Rainwater, surface runoff, snowmelt and drainage.
An employee, the municipal engineer or other public official(s)
designated by the Town of Kent to enforce this chapter. The Town may,
in its discretion, appoint an existing Code Enforcement Officer, Zoning
Enforcement Officer and/or Building Inspector to act as SMO. The SMO
may also be designated by the municipality to accept, review and approve
stormwater pollution prevention plans (SWPPP), forward the plans to
the applicable municipal department and inspect stormwater management
practices (SWMP). Plan reviews and site inspections may be delegated
to a consulting engineer and/or a consultant paid for through the
applicant's escrow account (hereinafter referred to as the "authorized
representative of the SMO"); however, a municipal employee or board
member must make the final approval.
A facility serving one or more parcels of land or residential
households, or a private, commercial or institutional facility that
treats sewage or other liquid wastes for discharge into the groundwaters
of New York State, except where a permit for such a facility is required
under the applicable provisions of Article 17 of the Environmental
Conservation Law, as revised or amended. For purposes of this chapter,
an "individual sewage treatment system," a "subsurface sewage disposal
systems," and a "subsurface sewage treatment system" are each deemed
to be a type of "subsurface treatment system."
A list of all surface waters in the state for which beneficial
uses of the water (drinking, recreation, aquatic habitat, and industrial
use) are impaired by pollutants, prepared periodically by the Department
as required by Section 303(d) of the Clean Water Act. 303(d) listed
waters are estuaries, lakes and streams that fall short of state surface
water quality standards and are not expected to improve within the
next two years.
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.
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 Officer(s) [SMO(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 SMO as may be authorized
by the municipality.
The provisions of this chapter are hereby declared
to be severable. If any provision, clause, sentence, or paragraph
of this chapter or the application thereof to any person, establishment,
or circumstance shall be held invalid, such invalidity shall not affect
the other provisions or application of this chapter.
No person shall discharge or cause to be discharged
into the MS4 any materials other than stormwater except as provided
in Subsection A below. The commencement, conduct or continuance of
any illegal discharge to the MS4 is prohibited except as described
as follows:
A.
The following discharges are exempt from discharge
prohibitions established by this chapter, unless the Department or
the municipality has determined them to be substantial contributors
of pollutants: water line flushing or other potable water sources,
landscape irrigation or lawn watering, existing diverted stream flows,
rising groundwater, uncontaminated groundwater infiltration to storm
drains, uncontaminated pumped groundwater, foundation or footing drains,
crawl space or basement sump pumps, air-conditioning condensate, irrigation
water, springs, water from individual residential car washing, natural
riparian habitat or wetland flows, dechlorinated swimming pool discharges,
residential street wash water, water from fire-fighting activities,
and any other water source not containing pollutants. Such exempt
discharges shall be made in accordance with an appropriate plan for
reducing pollutants.
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 chapter.
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 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 Department,
provided that the discharger is in full compliance with all requirements
of the permit, waiver, or order and other applicable laws and regulations,
and provided that written approval has been granted for any discharge
to the MS4.
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
chapter if the person connects a line conveying wastewater to the
municipality's MS4 or allows such a connection to continue.
No person shall operate a failing subsurface
sewage treatment system in areas within the municipality's MS4. A
failing subsurface sewage treatment system is one which has one or
more of the following conditions:
A.
The backup of sewage into a structure.
B.
Discharges of treated and untreated sewage onto the
ground surface.
C.
A sewer connection or connections to a separate stormwater
sewer system.
D.
Liquid level in the septic tank above the inlet invert.
E.
Structural failure of any component of the subsurface
sewage treatment system that could lead to any of the other failure
conditions as noted in this subsection.
F.
Contamination of groundwater.
A.
Activities that are subject to the requirements of
this section are:
(1)
Those types of activities that cause or contribute
to a violation of the municipality's MS4 SPDES permit; and
(2)
Those types of activities that cause or contribute to the municipality being subject to the special conditions as defined in § 43-1, Definitions, of this chapter; and
(4)
The improper management of pet waste.
B.
Upon notification to a person that he or she is engaged
in activities that cause or contribute to violations of the municipality'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.
A.
Best management practices. Where the SMO has identified illicit discharges as defined in § 43-1 or activities contaminating stormwater as defined in § 43-1, the municipality may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
(1)
The owner or operator of a commercial or industrial
establishment shall provide, at the owner's expense, reasonable protection
from accidental discharge of prohibited materials or other wastes
into the MS4 through the use of structural and nonstructural BMPs.
(2)
Any person responsible for a property or premises, which is, or may be, the source of an illicit discharge as defined in § 43-1 or an activity contaminating stormwater as defined in § 43-1 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 municipal stormwater system (MS4).
(3)
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.
B.
Subsurface treatment systems; response to special conditions requiring no increase of pollutants or requiring a reduction of pollutants. Where subsurface treatment systems are contributing to the municipality's being subject to the special conditions as defined in § 43-1 of this chapter, the owner or operator of such subsurface sewage treatment system(s) shall be required to:
(1)
Maintain and operate subsurface treatment systems
as follows:
(a)
Inspect the septic tank annually to determine
scum and sludge accumulation. Septic tanks must be pumped out whenever
the bottom of the scum layer is within three inches of the bottom
of the outlet baffle or sanitary tee or the top of the sludge is within
10 inches of the bottom of the outlet baffle or sanitary tee; and
(b)
Avoid the use of septic tank additives; and
(c)
Avoid the disposal of excessive quantities of
detergents, kitchen wastes, laundry wastes, and household chemicals;
and
(d)
Avoid the disposal of cigarette butts, disposable
diapers, sanitary napkins, trash and other such items.
(2)
Comply with all reporting and permitting requirements
of the Putnam County Sanitary Code Article 3 "Subsurface Sewage Treatment."
A.
Emergency situations. The SMO may, without prior notice,
suspend MS4 discharge access to a person when such suspension is necessary
to stop an actual or threatened discharge which presents or may present
imminent and substantial danger to the environment, to the health
or welfare of persons, or to the MS4. The SMO shall notify the person
of such suspension within a reasonable time thereafter in writing
of the reasons for the suspension. If the violator fails to comply
with a suspension order issued in an emergency, the SMO may take such
steps as deemed necessary to prevent or minimize damage to the MS4
or to minimize danger to persons.
B.
Suspension due to detection of illicit discharge.
Any person discharging to the municipality'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 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 with the SMO. Access may be granted by
the SMO if he/she finds that the illicit discharge has ceased and
the discharger has taken steps to prevent its recurrence. Access may
be denied if the SMO determines in writing that the illicit discharge
has not ceased or is likely to recur. A person commits an offense
if the person reinstates MS4 access to premises terminated pursuant
to this chapter 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 municipality prior to the allowing of
discharges to the MS4.
A.
Applicability. This section applies to all facilities
that the SMO, or the authorized representative of 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.
B.
Access to facilities.
(1)
The SMO, or the authorized representative of 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 or the authorized representative of the
SMO.
(2)
Facility operators shall allow the SMO, or the authorized
representative of 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 for compliance of this chapter.
(3)
The municipality 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, or the authorized representative of the
SMO, to conduct monitoring and/or sampling of the facility's stormwater
discharge.
(4)
The municipality 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.
(5)
An unreasonable delay in allowing the municipality
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 municipality reasonable
access to the facility for the purpose of conducting any activity
authorized or required by this chapter.
(6)
If the SMO, or the authorized representative of 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 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 an order issued hereunder, then the SMO may seek issuance
of a search warrant from any court of competent jurisdiction.
A.
Notwithstanding any 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.
B.
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.
C.
In the event of a release of nonhazardous materials,
said person shall notify the municipality in person or by telephone
or facsimile no later than the next business day.
D.
Notifications in person or by telephone shall be confirmed
by written notice addressed and mailed to the municipality within
three business days of the in person or telephone notice.
E.
If the discharge of prohibited materials emanates
from a commercial or industrial establishment, the owner or operator
of such establishment shall also retain an on-site written record
of the discharge and the actions taken to prevent its recurrence.
Such records shall be retained for at least three years.
A.
When the municipality's SMO 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. 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)
Payment of a fine, in an amount to be determined by
the Town Board; and
(6)
The implementation of source control or treatment
BMPs.
(7)
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.
Any person receiving a notice of violation may
appeal the determination of the SMO 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 Town 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 SMO, then the SMO shall request
the owner's permission for access to the subject private property
to take any and all measures reasonably necessary to abate the violation
and/or restore the property.
B.
If refused access to the subject private property,
the SMO may seek a warrant in a court of competent jurisdiction to
be authorized to enter upon the property to determine whether a violation
has occurred. Upon determination that a violation has occurred, the
SMO may seek a court order to take any and all measures reasonably
necessary to abate the violation and/or restore the property. The
cost of implementing and maintaining such measures shall be the sole
responsibility of the discharger.
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 15 days,
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 as a misdemeanor 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 as
a misdemeanor 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, repeat 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.
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 or the Town Board may commence a civil action in Supreme Court 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, and may request civil damages in the amounts set forth in § 43-18 in any court of competent jurisdiction.
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 SMO. When deciding whether to recommend an alternative remedy,
the Town Attorney and SMO shall consider the following factors:
B.
No one factor is dispositive, and the decision of
whether to recommend an alternative remedy shall solely be in the
combined discretion of the Town Attorney and the SMO.
C.
Alternative remedies may include, but shall not be
limited to, 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 federal,
state or local law and it is within the discretion of the authorized
enforcement agency to seek cumulative remedies.
