Chapter 12.30
WATERCOURSE REGULATION FOR POLLUTION AND ILLICIT DISCHARGES

Sections:

12.30.010    Purpose and intent.

12.30.020    Definitions.

12.30.030    Applicability.

12.30.040    Responsibility for administration.

12.30.050    Severability.

12.30.060    Ultimate responsibility.

12.30.070    Prohibition of illegal discharges and illicit connections.

12.30.080    Suspension of storm drain system access.

12.30.090    Industrial or construction activity discharges.

12.30.100    Monitoring of discharges and right of access to facilities.

12.30.110    Requirements to prevent, control, and reduce storm water pollutants through use of best management practices.

12.30.120    Watercourse protection.

12.30.130    Notification of spills.

12.30.140    Enforcement and notice.

12.30.150    Appeal notice of violation.

12.30.160    Enforcement measures after appeal.

12.30.170    Abatement of the violation – Violator’s liability.

12.30.180    Legal and equitable relief.

12.30.190    Penalties and fines.

12.30.200    Remedies not exclusive.

12.30.010 Purpose and intent.

The purpose of this chapter is to provide for the health, safety, and general welfare of the citizens of the town of Highland, Indiana, through the regulation of non-storm water discharges to the storm drainage system to the maximum extent practicable as required by federal and state law. This chapter, in accordance with 327 327 15-13 (also called Rule 13), 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 chapter are:

(A) To regulate the contribution of pollutants to the municipal separate storm sewer system (MS4) by storm water 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 chapter. [Ord. 1344 § 2, 2007. Code 2000 § 171.100].

12.30.020 Definitions.

For the purposes of this chapter, the following shall mean:

“Authorized enforcement agency” means the town of Highland and/or the sanitary district of the town of Highland, its employees, designees or agents.

“Best management practices (BMPs)” means 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 storm water, receiving waters, or storm water 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” means activities subject to NPDES construction permits. All construction projects of one acre or greater require an NPDES storm water phase II permit. Such activities include but are not limited to clearing and grubbing, grading, excavating, and demolition.

“Hazardous materials” means 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” means any direct or indirect non-storm water discharge to the storm drain system, except as exempted in the monitoring of discharges portion (HMC 12.30.100) of this chapter.

“Illicit connections” 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 non-storm water 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 the town of Highland 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 the town of Highland.

“Industrial activity” means activities subject to NPDES industrial permits as defined in 40 CFR 122.26 (b)(14).

“National Pollutant Discharge Elimination System (NPDES) storm water discharge permit” means a permit issued by EPA (or by a state under authority delegated pursuant to 33 USC 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.

“Non-storm water discharge” means any discharge to the storm drain system that is not composed entirely of storm water.

“Person” means 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.

“Pollutant” means 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, 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.

“Premises” means any building, lot, parcel of land, or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.

“Storm drain system” means publicly owned facilities by which storm water 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 humanmade or altered drainage channels, reservoirs, and other drainage structures.

“Storm water” means any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.

“Storm water pollution prevention plan” means 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 storm water, storm water conveyance systems, and/or receiving waters to the maximum extent practicable.

“Wastewater” means any water or other liquid, other than uncontaminated storm water, discharged from a facility.

“Watercourse” means any natural or improved stream, river, creek, ditch, channel, canal, conduit, gutter, culvert, drain, gully, swale, or wash in which waters flow either continuously or intermittently. [Ord. 1344 § 2, 2007. Code 2000 § 171.101].

12.30.030 Applicability.

This chapter shall apply to all water entering the storm drain system generated on any developed and undeveloped lands unless explicitly exempted by the authorized enforcement agency. [Ord. 1344 § 2, 2007. Code 2000 § 171.102].

12.30.040 Responsibility for administration.

The director of public works, on behalf of the authorized enforcement agency, shall administer, implement, and enforce the provisions of this chapter. The director of public works may delegate any authority granted hereunder to persons or entities acting in the beneficial interest of or in the employ of the authorized enforcement agency. [Ord. 1344 § 2, 2007. Code 2000 § 171.103].

12.30.050 Severability.

The provisions of this chapter are hereby declared 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. [Ord. 1344 § 2, 2007. Code 2000 § 171.104].

12.30.060 Ultimate responsibility.

The standards set forth herein and promulgated pursuant to this chapter are minimum standards; therefore, this chapter does not intend nor imply that compliance by any person will ensure that there will be no contamination, pollution, nor unauthorized discharge of pollutants. [Ord. 1344 § 2, 2007. Code 2000 § 171.105].

12.30.070 Prohibition of illegal discharges and illicit connections.

(A) Prohibition of Illegal Discharges. No person shall commence, conduct or continue any illegal discharge to the storm drain system except as follows:

(1) Discharges listed in 327 327 15-13-14(d) and discharges specified in writing by the authorized enforcement agency as being necessary to protect public health and safety are hereby exempt from prohibition under this chapter.

(2) Dye testing is an allowable discharge, but requires a verbal notification to the authorized enforcement agency prior to the time of the test.

(3) The prohibition shall not apply to any non-storm water 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.

(4) The exceptions listed above (subsections (A)(1) through (3) of this section) shall be deemed illegal discharges if (a) the director of public works determines the discharge or flow in question to be a significant source of a pollutant or pollutants to the waters of the United States or to the storm drain system; (b) written notice of such determination has been provided to the discharger; and (c) the discharge continues after the expiration of a reasonable time, as determined by the director of public works, to cease the discharge as provided in the notice.

(B) Prohibition of Illicit Connections. The construction, use, maintenance or continued existence of illicit connections to the storm drain system 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 the connection.

(C) No person shall connect a line conveying sewage to the storm drain system, or allow such a connection to continue. [Ord. 1344 § 2, 2007. Code 2000 § 171.106].

12.30.080 Suspension of storm drain system access.

(A) Suspension Due to Illicit Discharges in Emergency Situations. The director of public works may, without prior notice, order a person to suspend discharge to the storm drain system 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 storm drain system 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 storm drain system or waters of the United States, or to minimize danger to persons.

(B) Suspension Due to the Detection of Illicit Discharge. Any person discharging to the storm drain system in violation of this chapter may have their access terminated if such termination would abate or reduce an illicit discharge. The authorized enforcement agency shall notify a violator of the proposed termination of its storm drain system access. The violator may petition the authorized enforcement agency for reconsideration and hearing.

(C) No person shall reinstate storm drain system access to premises terminated pursuant to this section, without the prior approval of the authorized enforcement agency. [Ord. 1344 § 2, 2007. Code 2000 § 171.107].

12.30.090 Industrial or construction activity discharges.

Any person subject to an industrial or construction activity NPDES storm water 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 allowing discharges to the storm drain system. [Ord. 1344 § 2, 2007. Code 2000 § 171.108].

12.30.100 Monitoring of discharges and right of access to facilities.

(A) Applicability. This section applies to all facilities that have storm water discharges associated with industrial activity, including construction activity.

(B) The authorized enforcement agency shall be permitted to enter and inspect facilities subject to regulation under subsection (A) of this section as often as may be necessary to determine compliance with this chapter. Entry shall occur during reasonable business hours. Entry shall be with the consent of a rightful occupant of the premises, except where a public safety emergency justifies a warrantless entry. If entry is refused, a warrant may be procured to inspect the premises under the terms of IC 36-7-9-15. If a person operating a facility has security measures in place, which require proper identification and clearance before entry into its premises, the person operating the facility shall make the necessary arrangements to allow access to representatives of the authorized enforcement agency.

(C) 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 storm water, and the performance of any additional duties as defined by state and federal law.

(D) The authorized enforcement agency may 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 storm water discharge.

(E) The authorized enforcement agency may require the person operating a facility 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 person operating the facility at its own expense. All devices used to measure storm water flow and quality shall be calibrated to ensure their accuracy.

(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 person operating the facility 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 person operating the facility.

(G) A person operating a facility with an NPDES permit to discharge storm water associated with industrial activity shall not unreasonably delay or deny the authorized enforcement agency reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this chapter. [Ord. 1344 § 2, 2007; amended during 2012 recodification. Code 2000 § 171.109].

12.30.110 Requirements to prevent, control, and reduce storm water pollutants through use of best management practices.

The authorized enforcement agency may adopt requirements identifying best management practices for any activity, operation, or facility, which may cause or contribute to pollution or contamination of storm water, the storm drain system, or waters of the U.S. 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 storm drain system or any watercourse through the use of these BMPs. Further, the authorized enforcement agency may require any person responsible for premises, which are, or may be, the source of an illicit discharge, to implement at said person’s expense, additional BMPs to prevent the further discharge of pollutants to the storm drain system. Compliance with all terms and conditions of a valid NPDES 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. The BMPs shall be part of a storm water pollution prevention plan (SWPPP) as necessary for compliance with requirements of the NPDES permit issued to the town of Highland. [Ord. 1344 § 2, 2007. Code 2000 § 171.110].

12.30.120 Watercourse protection.

Every person owning premises through which a watercourse passes shall keep and maintain that part of the watercourse within the premises 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 of the premises shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures shall not become a hazard to the use, function, or physical integrity of the watercourse. [Ord. 1344 § 2, 2007. Code 2000 § 171.111].

12.30.130 Notification of spills.

Notwithstanding any other requirements prescribed by law, as soon as any person operating a facility acquires information regarding any known or suspected release of materials which result or may result in the illegal discharge of pollutants into the storm drain system, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of a release of hazardous materials, said person shall immediately notify emergency response agencies of the release. In the event of a release of nonhazardous materials, said person shall notify the authorized enforcement agency in person or in writing no later than the next business day. 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. [Ord. 1344 § 2, 2007. Code 2000 § 171.112].

12.30.140 Enforcement and notice.

(A) Whenever the authorized enforcement agency finds that a person has violated the provisions of this chapter, the authorized enforcement agency may order compliance by written notice of violation to the responsible person.

(B) The notice of violation may order without limitation:

(1) Performance of monitoring, analyses, and reporting;

(2) Elimination of illicit connections or discharges;

(3) Cessation of prohibited discharges, practices, or operations;

(4) Abatement or remediation of storm water pollution or contamination hazards and the restoration of any affected property;

(5) Payment of a fine which has been reasonably calculated to cover administrative and remediation costs; and

(6) Implementation of source control or treatment BMPs.

(C) A notice of violation shall set forth a reasonable opportunity of at least 10 days but not more than 60 days within which to complete such remediation or restoration.

(D) The notice of violation shall further advise that, should the violator fail to comply with the provisions contained therein, any ordered activity may be performed by the authorized enforcement agency and the expense thereof shall be charged to the violator.

(E) The expenses of the enforcement agency shall constitute a lien against the property. The lien attaches when notice of the lien is recorded in the office of the county recorder in which the property is located. The lien is superior to all other liens except liens for taxes, in an amount that does not exceed:

(1) Ten thousand dollars for real property that is unimproved or contains one or more occupied or unoccupied single- or double-family dwellings or the appurtenances or additions to those dwellings; or

(2) Twenty thousand dollars for all other real property not described in subsection (E)(1) of this section.

(F) The enforcement agency may issue a bill to the owner of the real property for the costs incurred by it in bringing the property into compliance with this chapter, including administrative costs and removal costs.

(G) A bill issued under this section is delinquent if the owner of the real property fails to pay the bill within 30 days after the date of the issuance of the bill.

(H) Whenever the enforcement agency determines it necessary, the officer charged with the collection of fees and penalties for the municipal corporation shall prepare a list of delinquent fees and penalties that are enforceable under this chapter, including:

(1) The name or names of the owner or owners of each lot of parcel of real property on which fees are delinquent;

(2) A description of the premises, as shown on the records of the county auditor; and

(3) The amount of the delinquent fees and the penalty; or an instrument for each lot or parcel of real property on which the fees are delinquent.

(I) The officer shall record a copy of each list or each instrument with the county recorder, who shall charge a fee for recording the list or instrument under the fee schedule established in IC 36-2-7-10.

(J) The amount of a lien shall be placed on the tax duplicate by the auditor. The total amount, including any accrued interest, shall be collected in the same manner as delinquent taxes are collected and shall be disbursed to the proper fund of the enforcement agency.

(K) A fee is not enforceable as a lien against a subsequent owner of property unless the lien for the fee was recorded with the county recorder before conveyance to the subsequent owner. If the property is conveyed before the lien is recorded, the enforcement agency shall notify the person who owned the property at the time the fee became payable. The notice must inform the person that payment, including penalty fees for delinquencies, is due not later than 15 days after the date of the notice. If payment is not received within 180 days after the date of the notice, the amount due may be considered a bad debt loss.

(L) The enforcement agency shall release:

(1) Liens filed with the county recorder after the recorded date of conveyance of the property; and

(2) Delinquent fees incurred by the seller;

upon receipt of a written demand from the purchaser or a representative of the title insurance company or the title insurance company’s agent that issued a title insurance policy to the purchaser. The demand must state that the delinquent fees were not incurred by the purchaser as a user, lessee, or previous owner and that the purchaser has not been paid by the seller for the delinquent fees.

(M) The county auditor shall remove the fees, penalties, and service charges that were not recorded before a recorded conveyance to a subsequent owner upon receipt of a copy of the written demand under subsection (H) of this section. [Ord. 1344 § 2, 2007; Ord. 1628 § 6, 2016. Code 2000 § 171.113].

12.30.150 Appeal notice of violation.

Any person receiving a notice of violation may appeal the notice of violation, in writing, to the authorized enforcement agency. The written appeal must be received by the authorized enforcement agency within seven days from the date of the notice of violation. The authorized enforcement agency shall conduct a hearing within 15 days from the date of receipt of the written appeal at which time the authorized enforcement agency shall reconsider whether a violation exists. The decision of the authorized enforcement agency shall be final. [Ord. 1344 § 2, 2007. Code 2000 § 171.114].

12.30.160 Enforcement measures after appeal.

(A) The authorized enforcement agency may enter upon any premises and take any and all actions necessary to abate and/or remedy the violation under the following circumstances; provided, that entry shall occur during reasonable business hours. Entry shall be with the consent of a rightful occupant of the premises, except where a public safety emergency justifies a warrantless entry. If entry is refused, a warrant may be procured to inspect the premises under the terms of IC 36-7-9-15.

(1) The violator failed to remedy the violation pursuant to the notice of violation and no written appeal was received by the authorized enforcement agency in a timely manner;

(2) A written appeal was received by the authorized enforcement agency in a timely manner and the violator failed to remedy the violation within 30 days following hearing and a determination against the violator by the authorized enforcement agency;

(3) In an emergency which threatens the public health, safety and welfare.

(B) No person shall refuse to allow the authorized enforcement agency to enter upon the premises for the purposes set forth above. [Ord. 1344 § 2, 2007; amended during 2012 recodification. Code 2000 § 171.115].

12.30.170 Abatement of the violation – Violator’s liability.

(A) A violator shall be liable to the authorized enforcement agency for any expense incurred for an action taken pursuant to this chapter. The authorized enforcement agency shall provide the violator with an itemized calculation of the expense of abatement within a reasonable time following abatement. Within 10 days following receipt of said notice, the property owner may file a written objection to the notice of expense. The authorized enforcement agency shall conduct a hearing within 15 days from the date of receipt of the objection. At the hearing, the authorized enforcement agency shall reconsider calculation of expense.

(B) Expenses determined hereunder shall be enforced and collected pursuant to the provisions of HMC 12.30.140 and IC 36-1-6. [Ord. 1628 § 7, 2016].

12.30.180 Legal and equitable relief.

The authorized enforcement agency shall have full power to invoke any authorized legal, equitable or special remedy for the enforcement of this chapter. The authorized enforcement agency is hereby authorized to institute proceedings in the circuit or superior courts of the county for prohibitory or mandatory injunctive relief to prevent or discontinue any violations hereof. [Ord. 1344 § 2, 2007. Code 2000 § 171.117].

12.30.190 Penalties and fines.

(A) Penalties and fines shall be assessed as follows:

(1) Any person who violates this chapter shall be subject to a fine not to exceed $100.00. Every day any violation of this chapter shall continue shall constitute a separate offense. The authorized enforcement agency may recover all attorneys’ fees, court costs and other expenses associated with enforcement of this chapter;

(2) Any person who violates, disobeys, neglects or refuses to comply with or who resists enforcement of any of the provisions of this chapter shall, upon prosecution, be fined not more than $2,500 for each offense. Each day that a violation is permitted to exist shall constitute a separate offense.

(B) Any person, entity or organization who shall violate any provisions of HMC 12.15.010 through 12.15.150 shall be fined in the amount set forth in the designated schedule as a payable offense subject to admission before the violations clerk or ordinance violation bureau in the amount set forth in the admissions clerk payable offenses schedule in HMC 9.85.060.

(C) If such persons, entity or organization shall violate any provisions of HMC 12.15.010 through 12.15.150, and there is a failure to satisfy the civil violation as set forth in Chapter 9.85 HMC, then such violations shall be construed as justiciable offenses and shall be subject to a fine of not less than $25.00 per violation, nor more than $2,500. Each day of such unlawful activity as is prohibited shall be deemed a separate offense. [Ord. 1502 § 2, 2011. Code 2000 § 171.118].

12.30.200 Remedies not exclusive.

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. [Ord. 1344 § 2, 2007. Code 2000 § 171.119].