[HISTORY: Adopted by the Town Board of the Town of Fishkill 11-10-2007 by L.L. No.
10-2007. Amendments noted where applicable.]
This purpose of this chapter is to provide for the health, safety,
and general welfare of the citizens of the Town of Fishkill through
the regulation of nonstormwater discharges to the municipal separate
stormwater 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 the requirements of the SPDES general permit for municipal
separate stormwater sewer systems. The intent of this chapter is to
meet the following objectives:
A.Â
To meet the requirements of the SPDES general permit for stormwater
discharges from MS4s, Permit No. GP-02-02, as amended or revised;
B.Â
To regulate the contribution of pollutants to the MS4 since such
systems are not designed to accept, process or discharge nonstormwater
wastes;
C.Â
To prohibit illicit connections, activities and discharges to the
MS4;
D.Â
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
chapter; and
E.Â
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, GP-02-01, as
amended or revised. These activities include construction projects
resulting in land disturbance of one or more acres. Such activities
include but are not limited to clearing and grubbing, grading, excavating,
and demolition.
The New York State Department of Environmental Conservation
(NYSDEC or DEC).
A 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 § 94-6 of this chapter.
An on-site facility serving one or more parcels of land or
residential households that treats sewage or other liquid wastes,
without the admixture of industrial wastes or other wastes, as those
terms are defined in New York Environmental Conservation Law § 17-0701,
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 hereafter
revised or amended.
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 Fishkill.
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 its MS4 permit may have caused or has
the reasonable potential to cause or contribute to the violation of
an applicable water quality standard. Under this condition the municipality
must take all necessary actions to ensure future discharges do not
cause or contribute to a violation of water quality standards.
Section 303(d)-listed waters: the condition in the municipality's
MS4 permit that applies where the MS4 discharges to a 303(d)-listed
water. Under this condition the stormwater management program must
ensure no increase of the listed pollutant of concern to the 303(d)-listed
water.
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 United
States Environmental Protection Agency (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 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 to ensure that reduction of the pollutant of concern specified
in the TMDL is achieved.
A permit issued by the Department that authorizes the discharge
of pollutants to waters of the state.
An order issued which requires that all construction activity
on a site be stopped.
Rainwater, surface runoff, snowmelt and drainage.
An employee, the Municipal Engineer or other public official(s)
designated by the Town of Fishkill to enforce this chapter. The SMO
may also be designated by the Town to accept, review and approve stormwater
pollution prevention plans, forward the plans to the applicable municipal
board and inspect practices. Plan reviews and site inspections may
be delegated to a consulting engineer and/or a consultant paid for
through the applicant's escrow account; however, a municipal
employee or board member must make the final approval (hereinafter
referred to as the "authorized representative of the SMO").
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. 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.
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
Town Board.
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 circumstances
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.Â
The following discharges are exempt from discharge prohibitions established
by this chapter, unless the Department or the Town has determined
them to be substantial contributors of pollutants: waterline 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 firefighting 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.Â
Discharges approved in writing by the SMO to protect life or property
from imminent harm or damage (also referred to as an "emergency discharge").
(1)Â
In an emergency situation, the SMO shall have the authority to approve
a discharge, which otherwise would constitute a violation of this
chapter, if such discharge is necessary to protect life or property
from imminent harm or damage. A discharge shall be deemed necessary
to protect life or property from imminent harm or damage when one
or more of the following conditions exist:
(2)Â
The procedure for obtaining permission for an emergency discharge
shall be as follows:
(a)Â
The owner of the subject property shall contact the SMO either
in person, by telephone or by letter to explain the facts justifying
an emergency discharge; and
(b)Â
Before making a decision on whether an emergency discharge is
warranted, the SMO may, in his/her sole discretion, require the property
owner to complete and execute an application for emergency discharge
in which the owner recites the facts justifying an emergency discharge
and affirms that such facts are true and accurate. Such application
shall be signed by the owner in the presence of a notary public.
(c)Â
The SMO shall issue his/her decision in writing within a reasonable
time after the owner has requested permission for an emergency discharge.
(d)Â
The SMO shall file a copy of his/her decision with the Town
Clerk.
(e)Â
The property owner shall, within three days of an emergency
discharge permitted by the SMO, file with the SMO and the Town Clerk
a written statement which shall identify:
[1]Â
The contents of what was discharged to the Town's MS4 (i.e.,
waste, chemicals, etc.) with as much specificity as is possible; and
[2]Â
Whether the problem that led to the need for an emergency discharge
has been rectified; and
[3]Â
Any other information requested by the SMO.
[4]Â
Such approval by the SMO shall not be construed to constitute
compliance with other applicable laws and requirements and, therefore,
does not relieve the property owner of any other obligations to obtain
permits, approvals, waivers, etc.
[5]Â
Such emergency discharges may only 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.Â
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.Â
The prohibition 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 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.Â
The construction, use, maintenance or continued existence of illicit
connections to the MS4 is prohibited.
B.Â
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.Â
A person is considered to be in violation of this chapter if the
person connects a line conveying wastewater to the Town's MS4
or allows such a connection to continue.
No person shall operate a failing individual sewage treatment
system in areas tributary to the Town's MS4. A failing individual
sewage treatment system is one which has one or more of the following
conditions:
A.Â
The backup of sewage into a structure.
B.Â
Discharges of treated and untreated sewage onto the ground surface.
C.Â
A connection or connections to a separate stormwater sewer system.
D.Â
Liquid level in the septic tank above the outlet invert.
E.Â
Structural failure of any component of the individual sewage treatment
system that could lead to any of the other failure conditions as noted
in this section.
F.Â
Contamination of off-site groundwater that has been substantiated
by reliable scientific evidence as attributable to the individual
sewage treatment system.
G.Â
Fails to comply with the provisions of the Dutchess County Sanitary
Code, as hereafter amended or revised.
A.Â
Activities that are subject to the requirements of this section are:
(1)Â
Those types of activities that cause or contribute to a violation
of the Town's MS4 SPDES permit; and
(2)Â
Those types of activities that cause or contribute to the Town being subject to the special conditions as defined in § 94-2, Definitions, of this chapter; and
(3)Â
Activities that include failing individual sewage treatment systems as defined in § 94-2; and
(4)Â
The improper management of pet waste as follows:
B.Â
Upon notification to a person that he or she is engaged in activities
that cause or contribute to violations of the Town'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 Town's MS4 SPDES permit authorization.
A.Â
Best management practices. Where the SMO has identified illicit discharges as defined in § 94-2 or activities contaminating stormwater as defined in § 94-9, the Town may require implementation of best management practices (BMPs) to control those illicit discharges and activities.
(1)Â
The owner or operator of a commercial or industrial establishment
shall provide, at the aforesaid owner's or operator'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)Â
Any person responsible for a property or premise which is, or may be, the source of an illicit discharge as defined in § 94-2 or an activity contaminating stormwater as defined in § 94-9 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)Â
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.Â
Individual sewage treatment systems: response to special conditions requiring no increase of pollutants or requiring a reduction of pollutants. Where individual sewage treatment systems are contributing to the Town's being subject to the special conditions as defined in § 94-2 of this chapter, the owner or operator of such individual sewage treatment systems shall be required to:
(1)Â
Maintain and operate individual sewage treatment systems as follows:
(a)Â
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)Â
Avoid the use of septic tank additives; and
(c)Â
Avoid the disposal of excessive quantities of detergents, kitchen
wastes, laundry wastes, and household chemicals; and
(d)Â
Avoid the disposal of cigarette butts, disposable diapers, sanitary
napkins, trash and other such items.
(2)Â
Repair or replace individual sewage treatment systems as follows:
(a)Â
In accordance with 10 NYCRR Appendix 75-A and the owner or operator
must submit proof to the SMO that a repaired or replaced individual
sewage treatment system has been approved by the Dutchess County Department
of Health; and
(b)Â
A design professional licensed to practice in New York State
shall prepare design plans for any type of absorption that involves:
(c)Â
A written certificate of compliance shall be submitted by the
design professional to the Town at the completion of construction
of the repair or replacement system.
A.Â
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.Â
Suspension due to detection of illicit discharge. Any person discharging
to the Town'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 Town prior to the allowing of discharges
to the MS4.
A.Â
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.Â
Access to facilities.
(1)Â
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)Â
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)Â
The Town shall have the right to set up on any facility subject to
this chapter such devices as are necessary in the opinion of the SMO,
or the authorized representative of the SMO, to conduct monitoring
and/or sampling of the facility's stormwater discharge.
(4)Â
The Town has the right to require the facilities subject to this
chapter to install monitoring equipment as is reasonably necessary
to determine compliance with this chapter. The facility's sampling
and monitoring equipment shall be maintained at all times in a safe
and proper operating condition by the discharger at its own expense.
All devices used to measure stormwater flow and quality shall be calibrated
to ensure their accuracy.
(5)Â
An unreasonable delay in allowing the Town 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 Town reasonable access to the facility for
the purpose of conducting any activity authorized or required by this
chapter.
(6)Â
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.Â
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.Â
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.Â
In the event of a release of nonhazardous materials, said person
shall notify the Town in person or by telephone or facsimile no later
than the next business day.
D.Â
Notifications in person or by telephone shall be confirmed by written
notice addressed and mailed to the Town within three business days
of the in-person or telephone notice.
E.Â
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.Â
When the Town'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)Â
The elimination of illicit connections or discharges;
(2)Â
That violating discharges, practices, or operations shall cease and
desist;
(3)Â
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(4)Â
The performance of monitoring, analyses, and reporting;
(5)Â
Payment of a fine; and
(6)Â
The implementation of source control or treatment BMPs.
B.Â
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
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 Town Clerk and mail a copy of its decision by
certified mail to the discharger.
A.Â
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.Â
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 Town 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 § 94-18 in any court of competent jurisdiction.
A.Â
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 the SMO shall consider the following factors:
B.Â
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.
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.