[Added 11-26-2007 by L.L. No. 12-2007]
The purpose of this article is to provide for the health, safety, and
general welfare of the citizens of the Village of East Aurora 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 pollutants 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 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 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 pollutants into the MS4.
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 Village.
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.
A.
Prohibition of illegal 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
illegal discharge to the MS4 is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions
established by this article, unless NYSDEC or the Village 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 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 pollutants. Such exempt discharges shall be made in
accordance with an appropriate plan for reducing pollutants.
(2)
Discharges approved in writing by the SMO to protect
life or property from imminent harm or damage are permitted, 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.
(3)
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.
(4)
The prohibition of illegal discharges shall not apply
to any discharge permitted under an SPDES permit, waiver, or waste discharge
order issued to the discharger and administered under the authority of NYSDEC,
provided that the discharger is in full compliance with all requirements of
the permit, waiver, or order and other applicable laws and regulations, and
provided that written approval has been granted for any discharge to the MS4.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence
of illicit connections to the MS4 is prohibited.
(2)
This prohibition expressly includes, without limitation,
illicit connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at the time
of connection.
(3)
A person is considered to be in violation of this article
if the person connects a line conveying sewage to the MS4, or allows such
a connection to continue.
A.
Activities contaminating stormwater are prohibited. Activities
that are subject to the requirements of this section are those types of activities
that:
B.
Such activities include improper management of pet waste
or any other activity that causes or contributes to violations of the Village'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 Village'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 Village's MS4 SPDES stormwater
discharge permit authorization.
Where the SMO has identified illicit discharges or an activity contaminating stormwater, as defined in § 205-58 of this article, the Village 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 its 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 § 205-58 of this article, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) to the MS4.
C.
Compliance with all terms and conditions of a valid SPDES
permit authorizing the discharge of stormwater associated with industrial
activity, to the extent practicable, shall be deemed compliance with the provisions
of this 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 Village
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 the
reasons for the suspension, in writing, within a reasonable time thereafter.
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
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. 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 Village 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 Village 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.
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 is resulting or may result in illegal discharges or pollutants discharging
into the MS4, said person shall take all necessary steps to ensure the discovery,
containment, and cleanup of such release. In the event of such a release of
hazardous materials, said person shall immediately notify emergency response
agencies of the occurrence via emergency dispatch services. In the event of
a release of nonhazardous materials, said person shall notify the Village
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 Village 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.
A.
Notice of violation.
(1)
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:
(a)
The elimination of illicit connections or discharges;
(b)
That violating discharges, practices, or operations shall
cease and desist;
(c)
The abatement or remediation of stormwater pollution
or contamination hazards and the restoration of any affected property;
(d)
The performance of monitoring, analyses, and reporting;
(e)
Payment of a fine; and
(f)
The implementation of source control or treatment BMPs.
(2)
If abatement of a violation and/or restoration of affected
property 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 before 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 the provisions
of this article shall be guilty of a violation punishable by a fine not exceeding
$350 or imprisonment for a period not to exceed six months, or both, for conviction
of a first offense; for conviction of a second offense, both of which were
committed within a period of five years, punishable by a fine not less than
$350 nor more than $700 or imprisonment for a period not to exceed six months,
or both; and upon conviction for a third or subsequent offense, all of which
were committed within a period of five years, punishable by a fine not less
than $700 nor more than $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 article 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 to the Village Board within 15 days of its issuance, which Board
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 Village 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 Village Board 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.
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/she may be given alternative remedies in lieu of a civil penalty, upon
recommendation of the Village 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.
