(a) Purpose. This section establishes methods for controlling the introduction of pollutants into the municipal separate storm sewer system (MS4) to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this article are:
(1) To regulate the contribution of pollutants to the municipal separate storm sewer system (MS4) by stormwater discharges by any user;
(2) To prohibit Illicit Connections and Discharges to the municipal separate storm sewer system; and
(3) To establish legal authority to carry out all inspection, surveillance, and monitoring procedures necessary to ensure compliance with this article.
(b) Applicability. This section 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.
(c) Severability. The provisions of this section 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 or application of this article.
(d) Ultimate Responsibility. The standards set forth herein and promulgated pursuant to this article 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.
(e) Discharge Prohibitions.
(1) 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 storm water.
The commencement, conduct, or continuance of any illegal discharge to the storm drain system is prohibited except as described as follows:
A. The following discharges are exempt from discharge prohibitions established by this article: water line flushing or other potable water sources (if water line flushing is hyperchlorinated, then water shall be dechlorinated before discharging the line), landscape irrigation or lawn watering, diverted stream flows, rising ground water, ground water infiltration to storm drains, uncontaminated pumped ground water, foundation or footing drains (not including active groundwater dewatering systems), crawl space pumps, air conditioning condensation, springs, non-commercial washing of vehicles, natural riparian habitat or wet-land flows, swimming pools (if dechlorinated - typically less than one PPM chlorine), fire fighting activities, and any other water source not containing Pollutants.
B. Discharges specified in writing by the City of Clarksburg as being necessary to protect public health and safety.
C. Dye testing is an allowable discharge, but requires a verbal notification to the City of Clarksburg prior to the time of the test.
D. The prohibition shall not apply to any non-storm water discharge permitted under an permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the EPA, 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.
(2) Prohibition of Illicit Connections.
A. The construction, use, maintenance, or continued existence of illicit connections to the storm drain system is prohibited.
B. This prohibition expressly includes, without limitation, illicit connection made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.
C. 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.
(f) Suspension of MS4 Access.
(1) Suspension Due to Illicit Discharges in Emergency Situations. The City may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual 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 City 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.
(2) Suspension due to the Detection of Illicit Discharge. Any person 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 City will notify a violator of the proposed termination of its MS4 access. The violator may petition the City for a reconsideration and hearing.
A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this Section, without the prior approval of the City.
(g) Industrial Or Construction Activity Discharges. Any person subject to a Permit or other Permit shall comply with all provisions of such Permit. Proof of compliance with said Permit may be required in a form acceptable to the City prior to the allowing of discharges to the MS4. Any discharge that would cause a violation of a Permit and any amendments, revisions, or reissuance thereof, either separately considered or when combined with other discharges, is prohibited. Liability for any such discharge, including, but not limited to, the cost of remedial activity, shall be the responsibility of the person(s) causing or responsible for the discharge, and the City shall seek to have such persons defend, indemnify and hold harmless the City in any administrative or judicial enforcement action against the City and/or the Clarksburg Sanitary Board relating to such discharge as provided by applicable rules of law.
(h) Monitoring Of Discharges.
(1) Applicability. This section applies to all facilities that have storm water discharges associated with industrial activity, including construction activity.
(2) Access to Facilities.
A. The City of Clarksburg 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 City of Clarksburg.
B. Facility operators shall allow the City of Clarksburg 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 Permit to discharge storm water, and the performance of any additional duties as defined by state and federal law.
C. The City of Clarksburg shall have the right to set up on any permitted facility such devices as are necessary in the opinion of the City of Clarksburg to conduct monitoring and/or sampling of the facility's storm water discharge.
D. The City of Clarksburg 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. The City of Clarksburg may, by written notice, order that such discharger to conducting such monitoring.
E. Within twenty (20) days of the date of receipt of the order notice, the recipient shall respond personally or in writing advising the Director of the recipients position with respect to the Order's requirements. Thereafter, the recipient shall be given the opportunity to meet with the Director to review the Order's requirements and revise the Order as the Director may deem necessary. Within ten (10) days of such meeting, the Director shall issue a final written order. Final Orders issued pursuant to this Section may be appealed to the Clarksburg Sanitary Board by the filing of a written appeal with the Sanitary Board within ten (10) days of receipt of the final Order. The appeal notice shall set forth the particular Order requirements or issues being appealed. The Sanitary Board shall hear the appeal at its earliest practical date and may either affirm, revoke or modify the Order. The decision of the Sanitary Board shall be final, but may be subject to review by a Court of competent Jurisdiction.
F. 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 City of Clarksburg and shall not be replaced. The costs of clearing such access shall be borne by the operator.
G. Unreasonable delays in allowing the City of Clarksburg access to a permitted facility is a violation of a Permit and of this article. A person who is the operator of a facility with a Permit to discharge storm water associated with industrial activity commits an offense if the person denies the City of Clarksburg reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this article.
H. If the City of Clarksburg has been refused access to any part of the premises from which stormwater is discharged, and City of Clarksburg 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 City of Clarksburg may seek issuance of a search warrant from any court of competent jurisdiction.
I. In the event the owner or operator of a facility or property fails to conduct the monitoring and/or analyses and furnish the reports required by the Order in the time frames set forth therein, the Director may cause such monitoring and/or analyses to occur. If a violation is found, the Director may assess all costs incurred, including reasonable administrative costs and attorney's fees, to the owner or operator. The Director may pursue judicial action to enforce the Order and recover all costs incurred.
(i) Requirement To Prevent, Control, And Reduce Storm Water Pollutants By The Use Of Best Management Practices. The City shall adopt requirements identifying Best Management Practices for any activity, operation, or facility which may cause or contribute to pollution of contamination of storm water, the storm drain system, or waters of the United States. The owner or operator of a commercial or industrial establishment shall provide, at such owner or operator's 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 premise, which is, or may be, the source of an illicit discharge, may be required to implement, at said person's expense, additional structural and non-structural BMPs to prevent the further discharge of pollutants to the municipal separate storm sewer system. Compliance with all terms and conditions of a valid Permit authorizing the discharge of storm water 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 (SWPPP) as necessary for compliance with the requirements of the Permit.
(j) Watercourse Protection. 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.
(k) Notification Of Spills. 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 storm water, 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 non-hazardous materials, said person shall notify the City 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 City 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 its recurrence. Such records shall be retained for at least three years.
(l) Enforcement.
(1) Notice of Violation. Whenever the City finds that a person has violated a prohibition or failed to meet a requirement of this article, the City may order compliance by written notice of violation to the responsible person. Such notice may require without limitation:
A. The performance of monitoring, analyses, and reporting;
B. The elimination of illicit connections or discharges;
C. That violating discharges, practices, or operations shall cease and desist;
D. The abatement or remediation of storm water pollution or contamination hazards and the restoration of any affected property;
E. Payment of a fine to cover administrative and remediation costs; and
F. The implementation of source control or treatment BMPs.
(2) 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.
(m) Appeal Of Notice Of Violation. Any person receiving a Notice of Violation may appeal the determination of the City. The notice of appeal must be received within thirty (30) days from the date of the Notice of Violation. Hearing on the appeal before the appropriate authority or such authority's designee shall take place within fifteen (15) days from the date of receipt of the notice of appeal. The decision of the municipal authority or such authority's designee shall be final.
(n) Enforcement Measures After Appeal. 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 thirty (30) days of the decision of the municipal authority upholding the decision of the authorized enforcement agency, then representatives of the City 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.
(o) Cost Of Abatement Of The Violation. Within sixty (60) 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 thirty (30) days. If the amount due is not paid within a timely manner as determined by the decision of the municipal authority 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 personally liable to the city by reason of such violation. If the violating person is a corporation or limited liability company, then the members, managers, and officers identified in the records maintained by the West Virginia Secretary of State shall also be personally liable. The liability shall be paid in not more than twelve (12) equal payments. Interest shall be assessed on the balance beginning on the 1st day following discovery of the violation. Such interest rate shall be the same interest rate determined by the administrative office of the Supreme Court of Appeals to be paid upon judgments pursuant to West Virginia Code 56-6-31.
(p) Injunctive Relief. It shall be unlawful for any person to violate any provision 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 City 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.
(q) Compensatory Action. In lieu of enforcement proceedings, penalties, and remedies authorized by this article, the City may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.
(r) Violations Deemed A Public Nuisance. 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, 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.
(s) Criminal Prosecution. Any person that has violated or continues to violate this article shall be liable to criminal prosecution to the fullest extent of the law, and shall be subject to a criminal penalty of one thousand dollars ($1000.00) dollars per violation per day. The City may recover all attorney's fees court costs and other expenses associated with enforcement of this article, including sampling and monitoring expenses.
(t) Remedies Not Exclusive. 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 City to seek cumulative remedies.
(Ord. 21-2. Passed 2-4-21.)