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No. 05-14 Effective: 09/08/2005 1 CITY OF LEWISTON CODE OF ORDINANCES CHAPTER 74 UTILITIES ARTICLE III. NON-STORM WATER DISCHARGE Sec. 74-200 Purpose. The purpose of this article is to provide for the health, safety, and general welfare of the citizens of the City of Lewiston through the regulation of non-storm water discharges to the municipality’s storm drainage system as required by federal and state law. This article establishes methods for controlling the introduction of pollutants into the City’s storm drainage system in order to comply with requirements of the federal Clean Water Act and state law. Sec. 74-201 Objectives. The objectives of this article are: To prohibit un-permitted or un-allowed non-storm water discharges to the storm drainage system; 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. Sec. 74-203 Definitions. For the purposes of this article, the following shall mean: Clean Water Act. The federal Water Pollution Control Act (33 U.S.C. sec. 1251 et seq., also known as the “Clean Water Act”), and any subsequent amendments thereto. Discharge. “Discharge” means any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of pollutants to “waters of the State”, "direct discharge" or "point source" means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft, from which pollutants are or may be discharged. Enforcement Authority. The person(s) or department authorized under Section 74-204 of this article shall administer and enforce this article. Exempt Person or Discharge. Means any person who is subject to a Multi-Sector General Permit for Industrial Activities, a General Permit for Construction Activity, a General Permit for the Discharge of Stormwater from the Maine Department of Transportation and ---PAGE BREAK--- No. 05-14 Effective: 09/08/2005 2 the Maine Turnpike Authority Municipal Separate Storm Sewer Systems, or a General Permit for the Discharge of Stormwater from State or Federally Owned Authority Municipal Separate Storm Sewer System Facilities; and any Non-Storm Water Discharge permitted under a NPDES permit, waiver, or waste discharge license or order issued to the discharger and administered under the authority of the U.S. Environmental Protection Agency (“EPA”) or the Maine Department of Environmental Protection Illicit Discharge. Any direct or indirect discharge to the municipal storm drain system that is not composed entirely of stormwater, except as exempted in this article. The term does not include a discharge in compliance with an NPDES Storm Water Discharge Permit or a Surface Water Discharge Permit, or resulting from fire fighting activities exempted pursuant to this article. Industrial Activity. Activity or activities subject to NPDES Industrial Permits as defined in 40 CFR, Section 122.26 Municipality. The City of Lewiston, Maine Municipal Separate Storm Sewer System, or MS4. “Municipal Separate Storm Sewer System” or (“MS4”) means conveyances for storm water, including, but not limited to, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, human-made channels or storm drains (other than publicly owned treatment works and combined sewers) owned or operated by any municipality, sewer or sewage district, fire district, State agency or Federal agency or other public entity that discharges directly to surface waters of the State. National Pollutant Discharge Elimination System (NPDES) Storm Water Discharge Permit. This means a permit issued by the EPA or by the DEP 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. (10) Non-Storm Water Discharge. Means any discharge to an MS4 that is not composed entirely of storm water. (11) Person. Means any individual, firm, corporation, municipality, quasi-municipal corporation, State agency or Federal agency or other legal entity which creates, initiates, originates or maintains a discharge of storm water or a non-storm water discharge. (12) Pollutant. Means dredged spoil, solid waste, junk, incinerator residue, sewage, refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological or radiological materials, oil, petroleum products or by-products, heat, wrecked or discarded equipment, rock, sand, dirt and industrial, municipal, domestic, commercial or agricultural wastes of any kind. (13) Premises. Means any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips, located within the ---PAGE BREAK--- No. 05-14 Effective: 09/08/2005 3 municipality from which discharges into the storm drainage system are or may be created, initiated, originated or maintained. (14) Regulated Small MS4. “Regulated Small MS4” means any small MS4 regulated by the State of Maine “General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems”, dated June 3, 2003 (“General Permit”), including all those located partially or entirely within an Urbanized Area (UA) and those additional small MS4s located outside a UA that as of the issuance of the General Permit have been designated by the DEP as Regulated Small MS4s. (15) Small Municipal Separate Storm Sewer System, or Small MS4, means any MS4 that is not already covered by the Phase I MS4 stormwater program including municipally owned or operated storm sewer systems, State or federally-owned systems, such as colleges, universities, prisons, Maine Department of Transportation and Maine Turnpike Authority road systems and facilities, and military bases and facilities. (16) Storm Drainage System. The municipality’s Regulated Small MS4 and areas outside the UA that drain into the Regulated MS4 and all premises. (17) Storm Water. Any storm water runoff, snowmelt runoff, and surface runoff and drainage; “Stormwater” has the same meaning as “Storm Water”. (18) Urbanized Area “Urbanized Area” or “UA” means the areas of the State of Maine so defined by the latest decennial census by the U.S. Bureau of the Census. Sec. 74-203 Applicability. This article shall apply to all persons discharging storm water and/or non-storm water discharges from any premises into the storm drainage system. Sec. 74-204 Responsibility for Administration. The City Administrator or his/her designee is the enforcement authority who shall administer, implement, and enforce the provisions of this article. Sec. 74-205 Prohibition of Non-Storm Water Discharges. General Prohibition. Except as allowed or exempted herein, no person shall create, initiate, originate or maintain a non-storm water discharge to the storm drainage system. Such non-storm water discharges are prohibited notwithstanding the fact that the municipality may have approved the connections, drains or conveyances by which a person discharges un-allowed non-storm water discharges to the storm drainage system. Allowed Non-Storm Water Discharges. The creation, initiation, origination or maintenance of the following non-storm water discharges to the storm drainage system is allowed: ---PAGE BREAK--- No. 05-14 Effective: 09/08/2005 4 a. Landscape irrigation; diverted stream flows; rising ground waters; uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20)); uncontaminated pumped ground water; uncontaminated flows from foundation drains; air conditioning and compressor condensate; irrigation water; flows from uncontaminated springs; uncontaminated water from crawl space pumps; uncontaminated flows from footing drains; lawn watering runoff; flows from riparian habitats and wetlands; residual street wash water (where spills/leaks of toxic or hazardous materials have not occurred, unless all spilled material has been removed and detergents are not used); hydrant flushing and fire fighting activity runoff; water line flushing and discharges from potable water sources; and individual residential car washing; b. Discharges specified in writing by the enforcement authority as being necessary to protect public health and safety; and c. Dye testing, with verbal notification to the enforcement authority prior to the time of the test. Exempt Person or Discharge. This article shall not apply to an exempt person or discharge, except that the enforcement authority may request from exempt persons and persons with exempt discharges copies of permits, notices of intent, licenses and orders from the EPA or DEP that authorize the discharge(s). Sec. 74-206 Suspension of Access to the Municipality’s Small MS4. The enforcement authority may, without prior notice, physically suspend discharge access to the storm drainage system to a person when such suspension is necessary to stop an actual or threatened non-storm water discharge(s) to the storm drainage system which present or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the storm drainage system, or which may cause the municipality to violate the terms of its environmental permits. Such suspension may include, but is not limited to, blocking pipes, constructing dams or taking other measures, on public ways or public property, to physically block the discharge to prevent or minimize non-storm water discharges to the storm drainage system. If the person fails to comply with a suspension order issued in an emergency, the enforcement authority may take such steps as deemed necessary to prevent or minimize damage to the storm drainage system, or to minimize danger to persons, provided, however, that in taking such steps the enforcement authority may only enter upon the premises that is the source of the actual or threatened non-storm water discharge to the storm drainage system with the consent of the premises’ owner, occupant or agent. Sec. 74-207 Monitoring of Discharges. In order to determine compliance with this article, the enforcement authority may enter upon and inspect premises subject to this article at reasonable hours with the consent of the premises’ owner, occupant or agent; to inspect the premises and connections thereon to the storm drainage ---PAGE BREAK--- No. 05-14 Effective: 09/08/2005 5 system; and to conduct monitoring sampling and testing of the discharge to the storm drainage system. Sec. 74-208 Enforcement. It shall be unlawful for any person to violate any provision of or to fail to comply with any of the requirements of this article. Whenever the enforcement authority believes that a person has violated this article, the enforcement authority may enforce this article in accordance with 30-A M.R.S.A. sec. 4452. Notice of Violation. Whenever the enforcement authority believes that a person has violated this article, the enforcement authority may order compliance with this article by written notice of violation to that person indicating the nature of the violation and ordering the action necessary to correct it, including, without limitation: a. The elimination of non-storm water discharges to the storm drainage system; b. The cessation of discharges, practices, or operations in violation of this article; c. At the person’s expense, the abatement or remediation (in accordance with best management practices in DEP rules and regulations) of non-storm water discharges to the storm drainage system and the restoration of any affected property; and/or d. The payment of fines, of the municipality’s remediation costs and of the municipality’s reasonable administrative costs and attorneys’ fees and costs. If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such abatement or restoration must be completed. Penalties/Fines/Injunctive Relief. Any person who violates this article shall be subject to fines, penalties and orders for injunctive relief and shall be responsible for the municipality’s attorney’s fees and costs, all in accordance with 30-A M.R.S.A. sec. 4452. Each day such violations continues shall constitute a separate violation. Moreover, any person who violates this article also shall be responsible for any and all fines, penalties, damages and costs, including, but not limited to attorneys’ fees and costs, incurred by the municipality for violation of federal and State environmental laws and regulations caused by or related to that person’s violation of this article; this responsibility shall be in addition to any penalties, fines or injunctive relief imposed under this Section. Consent Agreement. The enforcement authority may, with the approval of the municipal officers, enter into a written consent agreement with the violator to address timely abatement of the violation(s) of this article for the purposes of eliminating violations of this article and of recovering fines, costs and fees without court action. Appeal of Notice of Violation. Any person receiving a Notice of Violation or suspension notice may appeal the determination of the enforcement authority to the board of appeals ---PAGE BREAK--- No. 05-14 Effective: 09/08/2005 6 in accordance with the City’s Code of Ordinances. The notice of appeal must be received within 30 days from the date of the Notice of Violation. The board of appeals shall hold a de novo hearing on the appeal within 30 days from the date of receipt of the notice of appeal. The board of appeals may affirm, reverse or modify the decision of the enforcement authority. A suspension under Section 74-206 of this article remains in place unless or until lifted by the board of appeals or by a reviewing court. A party aggrieved by the decision of the board of appeals may appeal that decision to the Maine Superior Court within 45 days of the date of the board of appeals decision pursuant to Rule 80B of the Maine Rules of Civil Procedure. Enforcement Measures. 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 45 days of the decision of the municipal board of appeals upholding the decision of the enforcement authority, then the enforcement authority may recommend to the municipal officers that the town attorney file an enforcement action in a Maine court of competent jurisdiction under Rule 80K of the Maine Rules of Civil Procedure. Ultimate Responsibility of Discharger. The standards set forth herein are minimum standards; therefore 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 into waters of the U.S. caused by said person. This article shall not create liability on the part of the municipality, or any agent or employee thereof for any damages that result from any person's reliance on this article or any administrative decision lawfully made hereunder. Sec. 74-209 Severability. The provisions of this article are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this article or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions, clauses, sentences, or paragraphs or application of this article. Sec. 74-210 Basis. The City of Lewiston enacts this article pursuant to 30-A M.R.S.A. sec. 3001 (municipal home rule ordinance authority), 38 M.R.S.A. sec. 413 (the “Wastewater Discharge Law”), 33 U.S.C. Sec.1251 et seq. (the “Clean Water Act”), and 40 CFR Part 122 (U.S. Environmental Protection Agency’s regulations governing the National Pollutant Discharge Elimination System (“NPDES”)). The Maine Department of Environmental Protection, through its promulgation of the “General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems”, dated June 3, 2003, has listed the City of Lewiston as having a Regulated Small Municipal Separate Storm Sewer System (“Small MS4"); under this General Permit, listing as a Regulated Small MS4 necessitates enactment of this article as part of the Municipality’s Storm Water Management Program.