[HISTORY: Adopted by the Town Council of the Town of Portsmouth as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-28-2008 by Ord. No. 2008-04-28]
Increased and contaminated stormwater runoff is a major cause of impairment of water quality and flow in lakes, ponds, streams, rivers, wetlands and groundwater; contamination of drinking water supplies; alteration or destruction of aquatic and wildlife habitat; and flooding. The purpose of this article is to provide for the health, safety, and general welfare of the citizens of Portsmouth through the regulation of nonstormwater discharges to the municipal storm drainage system (MS4) to the maximum extent practicable as required by federal and state law. The objectives of this article are:
To prevent (or reduce to the maximum extent practicable) pollutants entering Portsmouth's municipal separate storm sewer system (MS4);
To prohibit illicit connections and unauthorized discharges to the MS4;
To require the physical removal of all such illicit connections and discharges;
To comply with state law and federal statutes and regulations relating to stormwater discharges; and
To set forth the legal authority and procedures to carry out all inspection, monitoring and enforcement activities necessary to ensure compliance with this article.
This article is promulgated pursuant to and consistent with the Federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Rhode Island Department of Environmental Management's (RIDEM) General Permit - Rhode Island Pollutant Discharge Elimination System Stormwater Discharge from Small Municipal Separate Storm Sewer Systems and from Industrial Activity at Eligible Facilities Operated by Regulated Small MS4s, and in accordance with the Administrative Procedures Act, R.I.G.L. § 42-35-1 et seq.
As used in this article, the following terms shall have the meanings indicated:
- ALLOWABLE NONSTORMWATER DISCHARGES
- Discharges not comprised of stormwater are allowed under the MS4 general permit but are limited to the following, provided these are not deemed significant contributors of pollutants to the MS4 by the DPW Director: discharges which result from the washdown of vehicles at retail dealers selling new and used automobiles where no detergents are used and individual residential car or boat washing; external building washdown where no detergents are used; the use of water to control dust; fire-fighting activities; fire hydrant flushings; natural springs; uncontaminated groundwater; dechlorinated pool discharges; air-conditioning condensate; lawn watering; potable water sources, including waterline flushings; irrigation drainage; pavement wash waters where spills or leaks of toxic or hazardous materials have not occurred (unless all spilled materials have been removed) and where detergents are not used; discharges from foundation or footing drains where flows are not contaminated with process materials, such as solvents, or contaminated by contact with soils where spills or leaks of toxic or hazardous materials have occurred; uncontaminated utility vault dewatering; dechlorinated waterline testing water; hydrostatic test water that does not contain any treatment chemicals and is not contaminated with process chemicals.
- AUTHORIZED ENFORCEMENT AGENCY
- Portsmouth Department of Public Works.
- BEST MANAGEMENT PRACTICES (BMPs)
- BMPs are 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.
- CONSTRUCTION ACTIVITY
- Activities subject to RIPDES construction permits. As of March 2003, RIPDES stormwater Phase II permits are required for 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.
- DPW DIRECTOR
- The Director of the Portsmouth Department of Public Works or his designee.
- 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.
- ILLEGAL DISCHARGE
- Any discharge to a municipal separate storm sewer system (MS4) that is not composed entirely of stormwater, except:
- ILLICIT CONNECTION
- Either of the following:
- A. 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 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
- B. 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.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
- A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains):
- NONSTORMWATER DISCHARGE
- Any discharge that is not composed entirely of stormwater.
- The party or parties that, either individually or taken together, have the day-to-day operational control over the facility activities and the ability to make modifications to such activities.
- The party or parties that, either individually or taken together, have legal title to any premises.
- 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 wastes and yard wastes; refuse, rubbish, garbage, litter, or other discarded or abandoned objects, articles, 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 surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation and resulting from such precipitation.
- UNAUTHORIZED DISCHARGE
- A discharge of stormwater not authorized by a RIPDES permit, or an allowable stormwater discharge found to be a significant contributor of pollutants to the MS4.
- STORMWATER APPEALS BOARD
- A three-member board appointed by the Town Council to hear
appeals of the DPW Director's actions in the administration of
this article.[Amended 10-22-2012 by Ord. No. 2012-10-22]
- A natural or man-made surface drainage channel or body of water (including a lake or pond) through which a water flow occurs, either continuously or intermittently.
- WATERS OF THE STATE
- Surface water and groundwater within the boundaries of the State of Rhode Island and subject to its jurisdiction.
No person/owner/operator shall discharge or cause to be discharged into the municipal separate storm sewer system (MS4) or watercourses any pollutant (See definition in § 336-3.) or nonstormwater discharge (See definition in § 336-3.), unless such a nonstormwater discharge is outlined in Part I.B.3 of the MS4 general permit, also known as "allowable nonstormwater discharges." (See definition in § 336-3.)
The construction, use, maintenance or continued existence of illicit connections (See definition § 336-3.) to the municipal separate storm sewer system (MS4) is prohibited. 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.
A person/owner/operator is considered to be in violation of this article if he/she constructs, uses, maintains or provides for the continued existence of a direct connection conveying an illegal discharge (See definition in § 336-3.) to the MS4 and must provide corrective action to eliminate said direct connection.
No person/owner/operator shall throw, deposit, leave, maintain, keep or permit to be thrown, deposited, left or maintained, in or upon any public or private property, driveway, parking area, street, alley, sidewalk, component of the storm drain system or waters of the state, any refuse, rubbish, garbage, litter or other discarded or abandoned objects, articles, and accumulations so that the same may cause or contribute to an illicit discharge into the MS4. Wastes deposited in streets in proper waste receptacles for the purposes of collection are exempted from this prohibition.
Suspension due to illicit discharges in emergency situations. The DPW Director may, without prior notice, suspend MS4 discharge access to a person/owner/operator when such suspension is, as determined by the DPW Director, necessary to stop an actual or threatened nonstormwater 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 state. The DPW Director shall immediately notify the RIDEM Office of Compliance and Inspection of this suspension activity. If the violator fails to comply with a suspension order issued in an emergency, the Portsmouth Department of Public Works may take such steps as deemed necessary to prevent or minimize damage to the MS4 or waters of the state or to minimize danger to persons.
Suspension due to the detection of illicit discharge. Any person/owner/operator discharging to the MS4 in violation of this article may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The DPW Director will notify a violator of the proposed termination of its MS4 access. The violator may petition the Stormwater Appeals Board for reconsideration and a hearing, per the provisions of § 336-12 herein. A person/owner/operator commits an offense if he/she reinstates MS4 access to premises terminated pursuant to this subsection without the prior written approval of the DPW Director.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
Requirement to eliminate illegal discharges. The DPW Director, or his designee, may require by written notice that a person responsible for an illegal discharge immediately, or by a specified date not less than 30 days nor more than 90 days from the date of notice, discontinue the discharge and, if necessary, take measures to eliminate the source of the discharge to prevent the occurrence of future illegal discharges.
Requirement to eliminate or secure approval for illicit connections. The DPW Director may require by written notice that a person/owner/operator responsible for an illicit connection to the storm drain system comply with the requirements of this section to eliminate the connection by a specified date not less than 30 days nor more than 90 days from the date of notice, regardless of whether or not the connection or discharges to it had been established or approved prior to the effective date of this article. If, subsequent to eliminating a connection found to be in violation of this article, the responsible person/owner/operator can demonstrate that illegal discharges will no longer occur, said person/owner/operator may request the DPW Director's approval to reconnect. The reconnection or reinstallation of the connection shall be at the responsible party's expense.
Requirement to remediate. Whenever the DPW Director finds that a discharge of pollutants is taking place or has occurred which will result in or has resulted in pollution of stormwater, the storm drain system (MS4) or waters of the state, the DPW Director may require by written notice to the owner of the property and/or the responsible party that the pollution be remediated and the affected property be restored at the owner's expense.
Requirement to monitor and analyze. The DPW Director may require by written notice of requirement that any person/owner/operator engaged in any commercial or industrial activity and/or owning or operating any facility which may cause or contribute to stormwater pollution, illegal discharges, and/or nonstormwater discharges to the storm drain system (MS4) or waters of the state shall undertake at said person's/owner's/operator's expense such monitoring and analyses and furnish such reports to the DPW Director as deemed necessary to determine compliance with this article.
Industrial and construction activity discharge. Any person/owner/operator subject to an industrial or construction activity RIPDES 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 DPW Director prior to the allowing of discharges to the MS4.
Requirement to prevent, control, and reduce stormwater pollutants. In an attempt to prevent, control, and reduce stormwater pollutants, any person/owner/operator engaged in activities or operations or owning facilities or property which will or may result in pollutants entering stormwater, the storm sewer system (MS4) or waters of the state shall implement best management practices to the extent they are technologically achievable to prevent and reduce such pollutants. The owner or operator of a commercial or industrial establishment shall provide reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drain system (MS4) or watercourses. Facilities to prevent accidental discharge of prohibited materials or other wastes shall be provided and maintained at the owner's or operator's expense.
Watercourse protection. Every person owning property through which a watercourse (See definition § 336-3.) passes shall keep and maintain that part of the watercourse within the property reasonably 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 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. The owner shall not remove healthy bank vegetation beyond that actually necessary for maintenance, nor remove said vegetation in such a manner as to increase the vulnerability of the watercourse to erosion. The property owner shall be responsible for maintaining and stabilizing that portion of the watercourse that is within their property lines in order to protect against erosion and degradation of the watercourse originating or contributed from their property. Nothing in this subsection shall preclude any owner from compliance with relevant provisions of the Rhode Island Fresh Water Wetlands Act, R.I.G.L. § 2-1-18 et seq., or other applicable laws or regulations.
Notification of spills. Notwithstanding other requirements of law, as soon as any person/owner/operator 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 state from said facility, said person/owner/operator shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release of a hazardous material, said person shall immediately notify the Portsmouth Fire Department of the occurrence via emergency dispatch services (911). In the event of a release of nonhazardous materials, said person/owner/operator shall notify the DPW Director 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 five 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 its recurrence. Such records shall be retained for at least three years. Nothing in this subsection shall preclude any owner/lessee from compliance with relevant provisions of the Rhode Island Clean Water Act, R.I.G.L. § 46-12-1 et seq., or other applicable laws or regulations.
To the extent permitted by state law, or if authorized by the owner or other party in control of the property, the Portsmouth Department of Public Works, its agents, officers, and employees may enter upon privately owned property for the purpose of performing their duties under this article and may make or cause to be made such examinations, surveys or sampling as the authorized enforcement agency deems reasonably necessary.
The DPW Director, or his designee, shall be permitted, upon the presentation of credentials and other documents as may be required by law, to:
Enter the dischargers premise(s) where a regulated activity is conducted or where records must be kept as required under the conditions of this permit;
Have access to and copy, at reasonable times, any records that must be kept as required under the conditions of the permit;
Inspect, at reasonable times, any equipment, practices, or operations regulated or required under this permit; and
Sample or monitor any substances at any location, at reasonable times, for the purposes of assuring compliance with this article or as otherwise authorized by Rhode Island law.
Whenever the DPW Director finds that any person/owner/operator has violated a prohibition or failed to meet a requirement of this article, the Portsmouth Department of Public Works 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 discharges;
That violating discharges, practices, or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
Payment of a fine to cover administrative and remediation costs; and
The implementation of source control or treatment BMPs.
If abatement of a violation and/or restoration of affected property are 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 the Portsmouth DPW or a designated subcontractor, and the expense thereof shall be charged to the violator. All notices shall be written and sent by registered mail, return receipt requested, except as otherwise provided herein.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
Any person/owner/operator receiving a notice of violation may appeal the determination of the DPW Director. The notice of appeal must be received within 15 days from the date of the receipt of the notice of violation. The notice of appeal shall be in writing and contain a detailed basis upon which the appeal was taken. Hearing on the appeal before the Stormwater Appeals Board shall take place within 30 days of the receipt of the notice of appeal. The procedure for said appeal shall be in conformity with the Administrative Procedures Act, R.I.G.L. § 42-35-1 et seq.
In lieu of enforcement proceedings, penalties, and remedies authorized by this article, the DPW Director may enter into a negotiated settlement to resolve the appeal of the notice of violation. Such settlement may impose upon a violator alternative compensatory action, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.
[Amended 10-22-2012 by Ord. No. 2012-10-22]
If no timely appeal of a notice of violation has been taken and 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 Stormwater Appeals Board upholding the decision of the DPW Director, representatives of the Portsmouth Department of Public Works shall undertake all necessary actions, including requesting injunctive relief through the Superior Court, to enter upon the subject private property and take any and all measures necessary to abate the violation and/or restore the property.
If abatement activities are required and undertaken by the Town, within 60 days after abatement of the violation by the Town, the DPW Director shall notify the property owner of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment with the Town Clerk within 15 days. The Town Clerk shall set the matter for public hearing by the Town Council. The decision of the Town Council shall be set forth by resolution and shall be final.
If the amount due is not paid within 30 days of the decision of the Town Council or the expiration of the time in which to file an appeal under this section, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment, plus accrued interest, to be paid upon satisfaction of said lien. A copy of the resolution shall be turned over to the Tax Assessor so that the auditor may enter the amounts of the assessment against the parcel as it appears on the current assessment roll, and the Tax Collector shall include the amount of the assessment on the bill for taxes levied against the parcel of land.
It shall be unlawful for any person/owner/operator to violate any provision or fail to comply with any of the requirements of this article. If a person/owner/operator has violated or continues to violate the provisions of this article, the DPW Director may petition for a temporary, preliminary or permanent injunction restraining the person/owner/operator from activities which would create further violations or compelling the person/owner/operator to perform abatement or remediation of the violation.
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, is declared and deemed a nuisance by the Town, 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.
It shall be the duty of the Town Solicitor, on authorization by the Town Council whenever a violation of this article is brought to its attention by the DPW Director, to institute due legal proceedings to compel compliance with this article and to prohibit any illegal discharge to the MS4 or maintenance of any illicit connection to the MS4 in violation of the provisions of this article.
The Town may also cause suit to be brought in the Supreme or Superior Court, or any Municipal Court, in the name of the Town, to restrain the violation of, or to compel compliance with, the provisions of this article. The Town may consolidate an action for injunctive relief and/or fines under this article in the Superior Court and may recover all attorneys' fees, court costs and other expenses associated with enforcement of this article, including sampling and monitoring expenses.
Any person/owner/operator who shall violate or assist in the violation or fail to comply with the requirements of any provision of this article, or for a violation of any terms or conditions of any action imposed by the DPW Director or any other agency or officer charged in this article with enforcement of any of its provisions, upon conviction thereof, shall be punishable by a fine of not more than $500 for each offense, and each day of the existence of any such violation shall be deemed a separate offense, and all such fines shall inure to the benefit of the Town.
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 Town of Portsmouth to seek cumulative remedies.