[Adopted 6-8-2017 by Ord.
No. 628]
As used in this article, the following terms shall have the
meanings indicated:
AUTHORIZED ENFORCEMENT AGENCY
Employees or designees of the Town of Elsmere, including,
but not limited to, the Town Manager and Code Enforcement Officers
of the Town.
BEST MANAGEMENT PRACTICES (BMPs)
Schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to prevent or reduce the
discharge of pollutants. BMPs also include treatment requirements,
operating procedures and practices to control facility site runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw
material storage. BMPs can be applied before, during or after pollution-generating
activities to reduce or eliminate the introduction of pollutants into
receiving waters.
CLEAN WATER ACT
The federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
CONSTRUCTION ACTIVITY
Activities subject to NPDES construction permits. Currently,
NPDES construction 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. All construction projects, regardless of size, must
comply with the Delaware Sediment and Stormwater Regulations (DSSR).
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.
ILLICIT CONNECTIONS
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 non-stormwater discharge,
including sewage, process wastewater, and wash water, to enter the
MS4 and any connections to the MS4 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 MS4 which has not been documented in plans, maps,
or equivalent records and approved by an authorized enforcement agency.
ILLICIT DISCHARGE
Any discharge to the municipal separate storm sewer that
is not composed entirely of stormwater, except those sanctioned by
a NPDES permit other than the NPDES permit for discharges from the
municipal separate storm sewer and discharges resulting from fire-fighting
and other activities referenced in Part II.A.3. of the NPDES permit
for discharges from the municipal separate storm sewer.
INDUSTRIAL ACTIVITY
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26(b)(14).
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), owned or operated by
a city, town, county, district, association, or other public body
created by or pursuant to state law having jurisdiction over the disposal
of sewage, industrial waste, stormwater, or other wastes, stormwater
management, drainage or flood control, which is:
A.
Designed or used for collecting or conveying stormwater;
B.
Not a combined sewer; and
C.
Not part of a publicly owned treatment works as defined at 40
CFR 122.2.
PERSON
Any individual, trust, firm, corporation (including a government
corporation), partnership, association, institution, enterprise, state,
municipality, commission, agency, political subdivision of a state
or an interstate body, or an agent or employee thereof.
POLLUTANT
Any substance which causes or contributes to, or may cause
or contribute to, the degradation of water, air, and soil resources
or to the health of humans, animals, or aquatic life. Examples may
include, but are not limited to, excess nutrients, chemicals, toxic
substances, industrial, municipal or agricultural wastes, etc.
PREMISES
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
STORMWATER
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
STORMWATER POLLUTION PREVENTION PLAN (SWPPP)
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 stormwater, stormwater
conveyance systems, and/or receiving waters to the maximum extent
practicable.
TOWN
The Town of Elsmere, Delaware, a municipal corporation located
in New Castle County, Delaware, and any of its officers and employees
or their designee.
WASTEWATER
Any water or other liquid, other than uncontaminated stormwater,
discharged from a facility.
This article shall apply to all water entering the MS4 generated
on any developed and undeveloped lands unless explicitly exempted
by an authorized enforcement agency.
The Code Enforcement Department shall administer, implement,
and enforce the provisions of this article. Any powers granted or
duties imposed upon the authorized enforcement agency may be delegated
in writing by the Town Manager to persons or entities acting in the
beneficial interest of or in the employ of the Town.
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 or application of this article.
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, or unauthorized discharge of pollutants.
Any person subject to an industrial or construction activity
NPDES 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 Code Enforcement Officer prior to the
allowing of discharges to the MS4.
The Town requires best management practices for any activity,
operation, or facility which may cause or contribute to pollution
or contamination of stormwater, the MS4, or waters of the United States.
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 MS4 or
watercourses through the use of these structural and nonstructural
BMPs. Further, any person responsible for a property or premises which
is, or may be, the source of an illicit discharge may be required
to implement, at said person's expense, additional structural
and nonstructural BMPs to prevent the further discharge of pollutants
to the municipal separate storm sewer system. Compliance with all
terms and conditions of a valid NPDES permit authorizing the discharge
of stormwater 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 (SWPP)
as necessary for compliance with requirements of the NPDES permit.
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.
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 stormwater, the
MS4, 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 nonhazardous
materials, said person shall notify the authorized enforcement agency
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 Town of Elsmere 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 five years.
Any person receiving a notice of violation may appeal the determination
of the authorized enforcement agency. The notice of appeal must be
received within 10 days from the date of the notice of violation.
Hearing on the appeal before the appropriate authority or his/her
designee shall take place within 15 days from the date of receipt
of the notice of appeal. The decision of the municipal authority or
its designee shall be final.
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 15 days of the decision of the municipal authority upholding
the decision of the authorized enforcement agency, then representatives
of the authorized enforcement agency 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.
Within 10 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 10 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 liable to the Town by reason of such violation.
The liability shall be paid in not more than 12 equal payments and
shall also include per-annum interest on the total amount due, computed
on the basis of the amortized amount outstanding at the rate provided
by 6 Del. C. § 2301.
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 authorized enforcement agency 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.
In lieu of enforcement proceedings, penalties, and remedies
authorized by this article, the authorized enforcement agency may
impose upon a violator alternative compensatory action, such as storm
drain stenciling, attendance at compliance workshops, creek cleanup,
etc.
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.
Any person who 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 $200 per violation
per day and/or imprisonment for a period of time not to exceed 120
days. The authorized enforcement agency may recover all attorneys'
fees, court costs and other expenses associated with enforcement of
this article, including sampling and monitoring expenses.
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 authorized enforcement
agency to seek cumulative remedies.