[HISTORY: Adopted by the Town of Marlborough as indicated
in article histories. Amendments noted where applicable.]
[Adopted 6-15-2010 (§ A.20 of the Town Code)]
The purpose of this article is to provide for the health, safety
and general welfare of the citizens of the Town of Marlborough through
the regulation of nonstormwater discharges to the storm drainage system
to the maximum extent practicable as required by federal and state
law. This article establishes methods for controlling the introduction
of pollutants into the municipal separate storm sewer system (MS4)
in order to comply with requirements of the National Pollutant Discharge
Elimination System (NPDES) permit process. The objectives of this
article are:
A.
To regulate the contribution of pollutants to the municipal separate
storm sewer system (MS4) by stormwater discharges by any user.
B.
To prohibit illicit connections and discharges to the municipal separate
storm sewer system.
C.
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
article.
For the purposes of this article, the following words and phrases
shall have the following meanings:
Employees or designee(s) of the municipal agency designated
to enforce this article.
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 subject to NPDES construction permits. Currently
these include construction projects resulting in land disturbance
of one acre or more. Such activities include but are not limited to
clearing and grubbing, grading, excavating and demolition.
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 direct or indirect nonstormwater discharge to the storm drain system, except as exempted in § 301-6 of this article.
An illicit connection is defined as either of the following:
Any drain or conveyance, whether on the surface or subsurface, which
allows an illegal discharge to enter the storm drain system, including
but not limited to any conveyances which allow any nonstormwater discharge
including sewage, process wastewater, and wash water to enter the
storm drain system 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 storm drain system which has not been
documented in plans, maps or equivalent records and approved by an
authorized enforcement agency.
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26(b)(14).
A permit issued by the EPA [or by a state under authority
delegated pursuant to 33 U.S.C. § 1342(b)] that authorizes
the discharge of pollutants to waters of the United States, whether
the permit is applicable on an individual group or general area-wide
basis.
Any discharge to the storm drain system 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 as the owner's agent.
Anything which causes or contributes to pollution. Pollutants
may include, but are not limited to, paints, varnishes and solvents;
oil and other automotive fluids; nonhazardous liquid and solid waste
and yard wastes; refuse, rubbish, garbage, litter or other discarded
or abandoned objects, ordnances and accumulations, so that same may
cause or contribute to pollution; floatables, pesticides, herbicides
and fertilizers; hazardous substances and wastes; sewage, fecal coliform
and pathogens; dissolved and particulate metals; animal wastes; wastes
and residues that result from constructing a building or structure;
and noxious or offensive matter of any kind.
Any building, lot, parcel of land or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Publicly owned facilities by which stormwater is collected
and/or conveyed, including but not limited to any roads with drainage
systems, municipal streets, gutters, curbs, inlets, piped storm drains,
pumping facilities, retention and detention basins, natural and human-made
or altered drainage channels, reservoirs and other drainage structures.
Any surface flow, runoff and drainage consisting entirely
of water from any form of natural precipitation and resulting from
such precipitation.
A document which describes the best management practices
and activities to be implemented by a person or business to identify
sources of pollution or contamination at a site and the actions to
eliminate or reduce pollutant discharges to stormwater, stormwater
conveyance systems, and/or receiving waters to the maximum extent
practicable.
Any water or other liquid, other than uncontaminated stormwater,
discharged from a facility.
This article shall apply to all water entering the storm drain
system generated on any developed and undeveloped lands unless explicitly
exempted by an authorized enforcement agency.
The Director of Planning and Development or designee(s) (hereinafter
the "authorized enforcement agency") shall administer, implement and
enforce the provisions of this article. Any powers granted or duties
imposed upon the authorized enforcement agency may be delegated in
writing to persons or entities acting in the beneficial interest of
or in the employ of the agency.
The standards set forth herein and promulgated pursuant to this
article are minimum standards, and this article does not intend nor
imply that compliance by any person will ensure that there will be
no contamination, pollution, nor unauthorized discharge of pollutants.
A.
Prohibition of illegal discharges. No person shall discharge or cause
to be discharged into the municipal storm drain system or watercourses
any materials, including but not limited to pollutants or waters containing
any pollutants that cause or contribute to a violation of applicable
water quality standards, other than stormwater. The commencement,
conduct or continuance of any illegal discharge to the storm drain
system is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions established
by this article: waterline flushing or other potable water sources,
landscape irrigation or lawn watering, diverted stream flows, rising
groundwater, groundwater infiltration to storm drains, uncontaminated
pumped groundwater, foundation or footing drains (not including active
groundwater dewatering systems), crawl space pumps, air-conditioning
condensation, springs, noncommercial washing of vehicles, natural
riparian habitat or wetland flows, swimming pools (if dechlorinated
- typically less than one part per million chlorine), firefighting
activities, and any other water source not containing pollutants.
(2)
Discharges specified in writing by the authorized enforcement agency
as being necessary to protect public health and safety.
(3)
Dye testing is an allowable discharge, but requires a verbal notification
to the authorized enforcement agency prior to the time of the test.
(4)
The prohibition shall not apply to any nonstormwater discharge permitted
under an NPDES permit, waiver or waste discharge order issued to the
discharger and administered under the authority of the Federal Environmental
Protection Agency, 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 storm drain system.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence of illicit
connections to the storm drain system 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.
Suspension of illicit discharges in emergency situations. The authorized
enforcement agency 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 or to the health or welfare
of persons or to the MS4 or waters of the United States. If the violator
fails to comply with a suspension order issued in an emergency, the
authorized enforcement agency may take such steps as deemed necessary
to prevent or minimize damage to the MS4 or waters of the United States
or to minimize danger to persons.
B.
Suspension due to the detection of illicit discharge.
(1)
Any person discharging to the MS4 in violation of this article may
have his MS4 access terminated if such termination would abate or
reduce an illicit discharge. The authorized enforcement agency will
notify a violator of the proposed termination of its MS4 access. The
violator may petition the authorized enforcement agency for a reconsideration
and hearing.
(2)
A person commits an offense if the person reinstates MS4 access to
premises terminated pursuant to this section without the prior approval
of the Authorized enforcement agency.
Any person subject to an industrial or construction activity
NPDES 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 authorized enforcement agency prior to
the allowing of discharges to the MS4.
A.
Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial activity, including construction
activity.
B.
Access to facilities.
(1)
The authorized enforcement agency 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 representatives
of the authorized enforcement agency.
(2)
Facility operators shall allow the authorized enforcement agency
ready access to all parts of the premises for the purposes of inspection,
sampling, examination and copying of records that must be kept under
the conditions of an NPDES permit to discharge stormwater and the
performance of any additional duties as defined by state and federal
law.
(3)
The authorized enforcement agency shall have the right to set up
on any permitted facility such devices as are necessary in the opinion
of the authorized enforcement agency to conduct monitoring and/or
sampling of the facility's stormwater discharge.
(4)
The authorized enforcement agency has the right to require the discharger
to install monitoring equipment as necessary. 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)
Any temporary or permanent obstruction to safe and easy access to
the facility to be inspected and/or sampled shall be promptly removed
by the operator at the written or oral request of the authorized enforcement
agency and shall not be replaced. The costs of clearing such access
shall be borne by the operator.
(6)
Unreasonable delays in allowing the authorized enforcement agency
access to a permitted facility is a violation of a stormwater discharge
permit and of this article. A person who is the operator of a facility
with an NPDES permit to discharge stormwater associated with industrial
activity commits an offense if the person denies the authorized enforcement
agency reasonable access to the permitted facility for the purpose
of conducting any activity authorized or required by this article.
(7)
If the authorized enforcement agency 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,
or to protect the overall public health, safety and welfare of the
community, then the authorized enforcement agency may seek issuance
of a search warrant from any court of competent jurisdiction.
The authorized enforcement agency will adopt requirements identifying
best management practices for any activity, operation or facility
which may cause or contribute to pollution or contamination of stormwater,
the storm drain system, or waters of the United States. 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 municipal storm drain
system or watercourses through the use of these structural and nonstructural
BMPs. Further, any person responsible for a property or premises,
which is or may be the source of an illicit discharge, may be required
to implement, at said person's expense, additional structural and
nonstructural BMPs to prevent the further discharge of pollutants
to the municipal separate storm sewer system. Compliance with all
terms and conditions of a valid NPDES permit authorizing the discharge
of stormwater associated with industrial activity, to the extent practicable,
shall be deemed compliance with the provisions of this section. These
BMPs shall be part of a stormwater pollution prevention plan (SWPP)
as necessary for compliance with requirements of the NPDES permit.
Every person owning property through which a watercourse passes,
or such person's lessee, shall keep and maintain that part of the
watercourse within the property free of trash, debris, excessive vegetation,
and other obstacles that would pollute, contaminate or significantly
retard the flow of water through the watercourse. In addition, the
owner or lessee shall maintain existing privately owned structures
within or adjacent to a watercourse so that such structures will not
become a hazard to the use, function or physical integrity of the
watercourse.
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 are resulting or may result
in illegal discharges or pollutants discharging into stormwater, the
storm drain system or waters of the United States, 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 authorized enforcement agency in person or by phone or facsimile
no later than the next business day. Notifications in person or by
phone shall be confirmed by written notice addressed and mailed to
the authorized enforcement agency within three business days of the
phone 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 is recurrence. Such
records shall be retained for at least three years.
A.
Notice of violation. Whenever the authorized enforcement agency finds
that a person has violated a prohibition or failed to meet a requirement
of this article, the authorized enforcement agency may order compliance
by written notice of violation to the responsible person. Such notice
may require, without limitation:
(1)
The performance of monitoring analyses and reporting;
(2)
The elimination of illicit connections or discharges;
(3)
That violating discharges, practices or operations shall cease and
desist;
(4)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(5)
Payment of a fine to cover administrative and remediation costs;
and
(6)
The implementation of source control or treatment BMPs.
B.
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 authorized enforcement agency. The notice of appeal must be
received within 15 days from the date of the notice of violation.
Hearing on the appeal before the Inland Wetlands Commission shall
take place within 45 days from the date of receipt of the notice of
appeal. The decision of the Inland Wetlands Commission shall be final.
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 15 days of the decision of the Inland Wetlands Commission,
then representatives of the Inland Wetlands and Watercourses Commission
shall enter upon the subject private property and are authorized to
take any and all measures necessary to abate the violation and/or
restore the property. It shall be unlawful for any person, owner,
agent or person in possession of any premises to refuse to allow the
government agency or designated contractor to enter upon the premises
for the purposes set forth above.
Within 15 days after abatement of the violation, the owner of
the property will be notified of the cost of abatement, including
administrative costs. The property owner may file a written protest
objecting to the amount of the assessment within 15 days. If the amount
due is not paid in a timely manner, as determined by the decision
of the Inland Wetlands Commission or by the expiration of the time
in which to file an appeal, the charges shall become a special assessment
against the property and shall constitute a lien on the property for
the amount of the assessment. Any person violating any of the provisions
of this article shall become liable to the Town by reason of such
violation. The liability shall be paid in not more than 12 equal payments.
Interest at the rate of 18% per annum shall be assessed on the balance
beginning on the 15th day following discovery of the violation.
It shall be unlawful for any person to violate any provisions
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 authorized enforcement agency may petition for a preliminary
or permanent injunction restraining the person from activities which
would create further violations or compelling the person to perform
abatement or remediation of the violation.
In lieu of enforcement proceedings, penalties and remedies authorized
by this article, the authorized enforcement agency may impose upon
a violator alternative compensatory actions, such as storm drain stenciling,
attendance at compliance workshops, creek cleanup, etc.
In addition to the enforcement process 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.
Any person that has violated or continues to violate this article
may be prosecuted criminally to the fullest extent of the law, in
addition to the remedy provided by this article.
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.