[HISTORY: Adopted by the Town Board of the Town of Ulysses as indicated in article histories. Amendments noted where applicable.]
Article I Illicit Discharges, Activities and Connections to Separate Storm Sewer System
[Adopted 2-28-2012 by L.L. No. 1-2012]
The purpose of this article is to provide for the protection of the natural environment and for the health, safety, and general welfare of the citizens of the Town of Ulysses through the regulation of nonstormwater discharges to the municipal separate storm sewer system (MS4) and surface waters to the maximum extent practicable. This article establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with requirements of the Town's State Pollutant Discharge Elimination System (SPDES) general permit for stormwater discharges from MS4. This article also establishes methods for controlling the introduction of pollutants into surface waters. The objectives of this article are:
To regulate the contribution of pollutants to the MS4, because such systems are not designed to accept, process or discharge nonstormwater wastes.
To prohibit certain activities regarding, and certain connections and discharges to, the MS4 and surface waters.
To meet the requirements of the Town's SPDES general permit for stormwater discharges from (MS4), as it may be amended or revised from time to time.
To establish the legal authority to carry out all inspection, surveillance, monitoring and enforcement procedures necessary to ensure compliance with this article.
To promote public awareness of the hazards involved in the improper discharge of trash, yard waste, lawn chemicals, fertilizers, pet waste, wastewater, grease, oil, petroleum products, cleaning products, paint products, hazardous materials, sediment and other pollutants into the MS4 and into surface waters.
Whenever used in this article, the following terms shall have the meanings set forth below:
- BEST MANAGEMENT PRACTICES
- 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. This term also includes treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.
- CONSTRUCTION ACTIVITY
- Activities requiring authorization under the New York State SPDES permit for stormwater discharges from construction activity, GP-0-15-002, as amended or revised. These activities include, but are not limited to, construction projects resulting in land disturbance of one or more acres through clearing, grubbing, grading, excavating, or demolition.
- The New York State Department of Environmental Conservation.
- HAZARDOUS MATERIAL
- 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. This term also includes any material or substance defined as or otherwise included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic pollutants" under the following federal laws: Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; Clean Water Act, 33 U.S.C. § 1251 et seq.; and New York Environmental Conservation Law, and all regulations promulgated under these statutes.
- ILLICIT CONNECTION
- Any connection to the municipal separate storm sewer system (MS4) or surface waters prohibited by § 149-7 of this article.
- ILLICIT DISCHARGE
- Any discharge to the municipal separate storm sewer system or surface waters prohibited by § 149-5 of this article.
- INDIVIDUAL SEWAGE TREATMENT SYSTEM
- A sewage treatment facility serving one or more residential parcels of land or residential households, or a private commercial or institutional sewage treatment 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 New York Environmental Conservation Law.
- INDUSTRIAL ACTIVITY
- Activities requiring the New York State SPDES permit for discharges from industrial activities except construction, GP-0-06-002/GP-0-11-009 (effective March 28, 2012), as amended or revised.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM
- A conveyance or system of conveyances (including roads with drainage systems, municipal streets, culverts, catch basins, curbs, gutters, ditches, human-made channels, swales, ponds, stormwater pipes, and storm drains):
- NONSTORMWATER DISCHARGE
- Any discharge to the municipal separate storm sewer system or a surface water that is not composed entirely of stormwater.
- Any association, organization, partnership, firm, corporation, or other similar entity.
- Any individual human being.
- Any material which may cause or might reasonably be expected to cause pollution of waters of the state, including, but not limited to, dredged spoil; filter backwash; solid waste; incinerator residue; treated or untreated sewage; animal wastes; cooking grease; detergents; oil; antifreeze and other automotive fluids or residues; fertilizers; pesticides; herbicides; garbage; sewage sludge; munitions; chemical wastes; paints; varnishes; solvents; pharmaceuticals; biological materials; radioactive materials; hazardous materials; heat; wrecked or discarded equipment; rock; sand; industrial waste (including, but not limited to, process wastewater and wash water); municipal waste; agricultural waste; ballast; and wastes and residues that result from constructing or remodeling a building or other structure (including, but not limited to, concrete, cement, slurries, mud, plasters and concrete rinsates).
- The human-made or human-induced alteration of the integrity of water by means of chemical, physical, biological, thermal or radiological changes.
- Any building, structure, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.
- Stormwater Management Officer.
- SPDES PERMIT
- A State Pollutant Discharge Elimination System permit issued by DEC to authorize the discharge of pollutants to the waters of the state.
- New York State.
- STORM DRAIN MARKING
- Labeling storm drain inlets with plaques, tiles, painted or pre-cast messages warning citizens not to dump pollutants into the drain. The messages are generally a simple phrase or graphic to remind those passing by that the storm drains connect to local water bodies and that dumping will pollute those waters.
- Any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation (such as rain, snow or ice) and resulting from such precipitation.
- STORMWATER MANAGEMENT OFFICER
- An employee of the Town or Town officer designated by the Town Board to enforce this article. The SMO is also designated by the Town to accept and review stormwater pollution prevention plans, forward the plans to the applicable board and inspect stormwater management practices.
- SURFACE WATERS
- All aboveground waters of the state that lie within the Town's municipal boundaries or are within the Town's jurisdiction.
- 303(d) LIST
- 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 DEC as required by Section 303(d) of the Clean Water Act, 33 U.S.C. § 1251 et seq. Section 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.
- Total maximum daily load.
- TOTAL MAXIMUM DAILY LOAD
- 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.
- The Town of Ulysses, Tompkins County, New York.
- Water that is not stormwater and that is contaminated with pollutants, and is or will be discarded.
- WATERS OF THE STATE
- Lakes, ponds, impounding reservoirs, springs, wells, rivers, intermittent and perennial streams, creeks, wetlands, marshes, inlets, canals, human-made bodies of water created for the treatment of stormwater, and all other bodies of surface or underground water, natural or artificial, public or private (except those private waters that do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the state or within its jurisdiction. Storm sewers and nonstormwater waste treatment systems, including treatment ponds or lagoons, which meet the criteria of this definition are not waters of the state. This exclusion applies only to human-made bodies of water which neither were originally created in waters of the state (such as a disposal area in wetlands) nor resulted from impoundment of waters of the state.
- Any area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
All references to discharges in this article shall apply to all discharges entering the MS4 or surface waters generated on any developed or undeveloped lands, unless explicitly exempted or otherwise authorized by this article.
The Stormwater Management Officer(s) (SMO) shall administer, implement, and enforce the provisions of this article. Such powers granted or duties imposed upon the SMO may be delegated, in writing, by the SMO as authorized by the Town.
No organization or person shall discharge or cause to be discharged into the MS4 or surface waters any material or substance that is not composed entirely of stormwater, unless the discharge is authorized as set forth in § 149-6.
This prohibition applies to direct discharges (such as through pipes, hoses, or human-created channels) and indirect discharges (such as through sheet flow, groundwater infiltration, or natural swales) into the MS4 or surface waters.
Any organization or person who is notified that it is violating the prohibitions in this section shall immediately take appropriate action to abate the violation and comply with this section.
The discharge prohibition in § 149-5 shall not apply to the following:
Discharges authorized under a SPDES permit, waiver, or waste discharge order issued to the discharger and administered under the DEC's authority, provided that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations, and further provided that the DEC has granted written approval for the discharge into the MS4 or surface water.
Discharges approved, in writing, by the SMO to protect life or property from imminent harm or damage, provided that other applicable laws and requirements are not violated, 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.
Dye testing in compliance with applicable state and local laws, provided that the discharger provides a verbal notification to the SMO prior to the time of the test.
The following nonstormwater discharges are permissible, but only if they do not result in a violation of New York State water quality standards, the DEC or Town has not determined them to be substantial contributors of pollution, and they are undertaken in compliance with any applicable or required best management practices:
Water supply line flushing.
Discharges from potable water sources.
Existing legally diverted stream flows.
Uncontaminated groundwater infiltration to storm drains.
Uncontaminated pumped groundwater.
Uncontaminated groundwater from foundation and footing drains.
Uncontaminated groundwater from crawl space and basement sump pumps.
Water from individual residential car washing.
Flows from natural riparian habitats and wetlands.
Dechlorinated swimming pool discharges.
Residential street wash water.
Water from firefighting activities.
Any other water source not containing pollutants.
No organization or person shall construct, use, maintain or permit the continued existence of any human-created connection to the MS4 or surface waters via pipe, hose, drain, plumbing, channel, or other human-created conveyance, whether on the surface or subsurface, where said connection could allow an illicit discharge into the MS4 or surface waters.
This prohibition expressly includes, without limitation, illicit connections that were made prior to the effective date of this article and regardless of whether the connection was permissible or approved under law or practices applicable or prevailing at the time of connection.
Upon notification that a prohibition of this section has been violated, an organization or person shall immediately take appropriate action to abate the violation and comply with this section.
The following activities are prohibited:
Activities that cause or contribute to a violation of the Town's MS4 SPDES permit.
Activities that cause or contribute to the Town being subject to any of the following special conditions in the Town's MS4 SPDES permit:
Discharge compliance with water quality standards. This condition applies where DEC has notified the Town that the discharge of stormwater authorized under its MS4 SPDES 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 Town must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.
Discharge to 303(d)-listed waters. This condition applies where the MS4 discharges to a 303(d)-listed water. Under this condition, the Town's stormwater management program must ensure no increase of the listed pollutant of concern to the 303(d)-listed water.
TMDL strategy. This condition applies 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.
Future TMDL approval. This condition 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 Town 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 Town 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.
Activities in violation of § 149-8A and B above include, but are not limited to, improper management of animal waste, application of fertilizer or pesticide not in accordance with label directions, and storage of fertilizers or pesticides so they are exposed to stormwater, where such activities cause or contribute to violations of the Town's MS4 SPDES permit or cause or contribute to the triggering of any of the special conditions in said permit.
Failing individual sewage treatment system, where such system contaminates stormwater. The failure to properly maintain and operate an individual sewage treatment system is a violation of this article and of the Tompkins County Sanitary Code. If the Town receives notification of a potentially failing system, the Town will refer the report to the Tompkins County Health Department, in addition to any other steps the Town may take pursuant to this article.
Any organization or person who is notified that its/his/her activities violate the prohibitions in this section shall immediately modify or abate such activities so they are no longer in violation.
Where the Stormwater Management Officer has identified an illicit discharge or an activity prohibited by § 149-8, the Town may, among other things, require implementation of best management practices to control said discharges or practices. Examples of best management practices include, but are not limited to, spill response plans, proper storage of hazardous materials, and the marking of storm drains on commercial, industrial, or institutional properties.
The owner and/or operator of premises used for commercial, industrial or institutional purposes that violates said prohibitions may be required to provide, at its own expense, reasonable protection from accidental discharge of pollutants into the MS4 or surface waters through the use of structural and/or nonstructural best management practices.
The owner and/or operator of premises which are, or may be, the source of a prohibited discharge or activity may be required to implement, at said person's expense, structural and/or nonstructural best management practices to reduce or eliminate the source of pollutant(s) to the MS4 or surface waters.
Any organization or person subject to an industrial or construction activity SPDES stormwater discharge permit shall comply with all provisions of such permit. The Town may require proof of compliance with said permit in a form acceptable to the Town before it allows such discharges to the MS4.
The SMO may, without prior notice, suspend MS4 discharge access to an organization or 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 organization or person of such suspension, in writing, within a reasonable time thereafter of the reasons for the suspension. If the recipient 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 and/or to minimize danger to persons.
Suspension due to the detection of illicit discharge. Any organization or person discharging to the MS4 in violation of this article may have access terminated if such termination would abate or reduce an illicit discharge. The SMO shall notify an alleged violator, in writing, of the proposed termination of its access and the reasons therefor. If the alleged violator disputes the SMO's allegations, it may appeal to the Town Board pursuant to the procedures set forth in § 149-14C. Access may be granted by the Town Board if it finds that the illicit discharge has ceased and the discharger has taken steps to prevent its recurrence. Access may be denied if the Town Board determines, in writing, that the illicit discharge has not ceased or is likely to recur. The Town Board's decision shall constitute a final agency action.
Applicability. This section applies to all premises that the SMO must inspect to enforce or verify compliance with any provision of this article and to all premises upon which the Town has reason to believe that there exists, or potentially exists, a condition which constitutes a violation of this article.
Access to premises.
The SMO shall be permitted to enter and inspect premises as often as may be necessary to determine compliance with this article. If the owner, operator or occupant of the premises has security measures in force which require proper identification and clearance before entry, such owner, operator or occupant shall make the necessary arrangements to allow access to the SMO.
The owners, operators and occupants of premises 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 and enforce this article.
The Town or its designee shall have the right to set up upon any premises and to operate and monitor such devices as are necessary in the opinion of the SMO to conduct monitoring and/or sampling of discharges from the premises into the MS4 or surface waters.
The Town has the right to require the owners, operators or occupants of premises to install such monitoring equipment as is reasonably necessary to determine compliance with this article. Such owner, operator or occupant shall maintain such sampling and monitoring equipment in a safe and proper operating condition at all times and at his/her own expense. All devices used to measure stormwater flow and quality shall be calibrated to ensure their accuracy, and written proof of such calibration shall be submitted to the SMO upon his or her request.
The owners, operators and occupants of premises shall not unreasonably delay the Town in its access to the premises, nor shall they deny the Town reasonable access to the premises where such access is required to conduct any activity authorized or required by this article.
If the SMO has been refused access to any part of the premises to which access is authorized or required pursuant to this article and the SMO 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 warrant from any court of competent jurisdiction.
Notwithstanding any other requirements of law, as soon as any person responsible for any premises (including any facility or operation thereon) or for emergency response for any premises, facility or operation has information of any known or suspected release of materials which are resulting or may result in an illicit discharge into the MS4 or surface waters, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of a release of hazardous materials into the MS4 or surface waters, said person shall immediately notify the relevant emergency response agencies of the occurrence via emergency dispatch services (911) and then immediately notify the SMO as soon as possible. In the event of a release of nonhazardous materials into the MS4 or surface waters, said person shall notify the SMO by no later than the next business day. All notifications shall be confirmed by written notice addressed and mailed to the SMO within three business days of the release or discovery thereof.
If the illicit discharge emanates from a commercial, industrial or institutional 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.
When the SMO determines that any organization or person has violated a prohibition or failed to meet any other requirement of this article, the SMO may order compliance by written notice of violation to the responsible person. Such notice may require, without limitation:
The performance of monitoring, analyses, and reporting;
The elimination of illicit connections or illicit discharges;
That violating discharges, practices, or operations cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; and/or
The implementation of source control or treatment best management practices.
If abatement of a violation and/or restoration of affected property is required, the notice of violation shall set forth a deadline within which such remediation or restoration must be completed. Said notice of violation shall further advise that, should the violator fail to remediate or restore within the established deadline, the work may be done by a designated governmental agency or a contractor, with the expense thereof to be charged to the violator and/or to become a lien against the premises.
Town's performance of remediation and restoration.
If any remedial or restoration measures are not completed to the satisfaction of the SMO within the period set forth in the Town's notice of violation or Town Board's decision after any appeal thereof pursuant to Subsection C below, the Town may enter the premises to undertake the remedial or restoration measures or cause them to be made. The Town's entry onto such premises shall be pursuant to an agreement between the Town and the landowner. If no agreement exists or can be obtained in a timely manner, the Town may enter such property to remove an imminent danger to life, property or safety of the public caused by the activities that violate this article. The Town further may seek a warrant from a court of competent jurisdiction for access to the premises and/or may seek a court order requiring or authorizing all actions reasonably necessary to abate the violation and/or restore the property. The costs of such actions shall be the sole responsibility of the violator.
The Town shall present the landowner with a bill for all costs and expenses incurred by the Town in connection with the remedial and restoration measures. If the landowner shall fail to pay such costs and expenses within 15 days after the demand for same, or within 30 days of the final decision on any administrative or judicial contest the landowner may pursue, then such unpaid costs, expenses and interest (at the statutory interest rate for money judgments in New York State courts) incurred from the date of the remedial and restoration measures shall constitute a lien upon the land on which such measures were undertaken. A legal action or proceeding may be brought to collect such costs, expenses, interest, and recoverable attorney's fees or to foreclose such lien. As an alternative to the maintenance of any such action, the Town may file a certificate with the Tompkins County Department of Assessment stating the costs and expenses incurred and interest accruing as aforesaid, together with a statement identifying the property and landowner. The Tompkins County Department of Assessment shall in the preparation of the next assessment roll assess such unpaid costs, expenses and interest upon such property. Such amount shall be included as a special ad valorem levy (administered as a move tax) against such property, shall constitute a lien, and shall be collected and enforced in the same manner, by the same proceedings, at the same time, and under the same penalties as are provided by law for collection and enforcement of real property taxes in the Town of Ulysses. The assessment of such costs, expenses and interest shall be effective even if the property would otherwise be exempt from real estate taxation.
The Town's rights to undertake remedial and restoration measures and recover the costs from the landowner are in addition to all other rights and remedies allowed by this article or by law or in equity.
Appeals of notices of violation, notices of proposed suspension of access, and Town bills. Any organization or person receiving a notice of violation, notice of proposed suspension of access to the MS4, or a bill for Town costs and expenses may appeal to the Town Board by, within 15 days of receipt of such notice or bill, delivering to the Town Clerk at the Town offices an appeal requesting a reconsideration and administrative hearing before the Town Board. Such appeal shall state the basis for the request for reconsideration and shall be accompanied by any supporting materials. Failure to serve such an appeal within 15 days shall be deemed a waiver of any claim or defense that the notice or bill is not justified, and the violator shall comply with the requirements of the notice or pay the bill. If the appeal is timely filed, the Town Board shall, within 40 days of the filing, hold a hearing and, based upon any relevant materials presented by the Town and the appellant, shall issue a resolution deciding the appeal within 30 days after the hearing. Such resolution shall be filed with the Town Clerk, who shall arrange for delivery of a copy of the decision to the appellant within five days after such filing, at the address for such organization person designated in the appeal or at such other address as the appellant may thereafter designate, in writing, to the Town Clerk. The Town Board's decision after the hearing shall constitute a final agency action.
Fines, penalties and injunctive relief.
Fines and imprisonment.
A violation of any of this article's requirements is hereby declared to be an offense, with conviction of a first offense punishable by a fine of up to $500 or imprisonment not to exceed 15 days, or both. For conviction of a second or subsequent offense which was committed within a period of five years from the commission of the prior offense, a violator shall be subject to a fine of up to $1,000 or imprisonment not to exceed 15 days, or both.
Each day a violation exists shall constitute a separate violation.
Any police officer, peace officer, Stormwater Management Officer, or any other person who may be lawfully designated by the Town Board shall have the authority to issue appearance tickets in connection with such violations.
Civil penalties and injunctions.
Organizations or persons violating any of this article's requirements shall be liable for a civil penalty of up to $500 for a first violation and up to $1,000 for a second or subsequent violation which was committed within a period of five years from the commission of the prior violation.
Each day a violation exists shall constitute a separate violation.
The Attorney for the Town or his or her designee may commence an action or special proceeding against the violator in a court of competent jurisdiction to collect these penalties, together with costs, disbursements and recoverable attorneys' fees, and/or to compel compliance with this article or restrain by injunction any such violation.
Withholding of building permits and certificates of occupancy. If any activity is undertaken or condition exists in violation of this article, the SMO or Town Code Enforcement Officer may withhold or revoke any building permit or withhold a certificate of occupancy for the premises on which such violation occurs.
Upon the recommendation of the Attorney for the Town and concurrence of the SMO, the Town and any violator of this article may agree that the violator will be subject to alternative remedies in lieu of the Town's seeking a civil penalty. Such an agreement is appropriate where:
The violation was unintentional;
The violator has no history of previous violations of this article;
Environmental damage did not occur or was minimal;
The violator acted quickly to remedy the violation; and
The violator cooperated in the investigation and the violation's resolution.
Alternative remedies may consist of one or more of the following:
In addition to the enforcement processes and penalties provided in this article, any condition caused or permitted to exist in violation of any of the provisions of this article is hereby deemed and declared to be 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 undertaken by the Town in its sole discretion.
The remedies set forth 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 Town to seek cumulative remedies.