[HISTORY: Adopted by the Mayor and Council
of the Town of Elsmere as indicated in article histories. Amendments
noted where applicable.]
[Adopted 6-8-2017 by Ord.
No. 628[1]]
[1]
Editor's Note: This ordinance also repealed former Ch. 190,
Stormwater Management, adopted 12-8-2005 by Ord. No. 459.
A.
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens and businesses of the Town of
Elsmere through the regulation of non-stormwater discharges to the
municipal separate storm sewer system (MS4) to the maximum extent
practicable as required by federal and state law. This article establishes
methods for controlling the discharge of pollutants into the MS4 in
order to comply with requirements of the Town's National Pollutant
Discharge Elimination System (NPDES) permit.
B.
The objectives of this article are:
(1)
To regulate the discharge of pollutants to the municipal separate
storm sewer system (MS4) by any user.
(2)
To prohibit illicit connections and discharges to the municipal separate
storm sewer system.
(3)
To establish legal authority to carry out all inspection, surveillance,
monitoring, and enforcement procedures necessary to ensure compliance
with this article.
As used in this article, the following terms shall have the
meanings indicated:
Employees or designees of the Town of Elsmere, including,
but not limited to, the Town Manager and Code Enforcement Officers
of the Town.
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.
The federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
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).
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.
Either of the following:
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
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.
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.
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26(b)(14).
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 permit issued by the EPA [or by a state under authority
delegated pursuant to 33 U.S.C. § 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.
Any discharge to the MS4 that is not composed entirely of
stormwater.
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.
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.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
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.
The Town of Elsmere, Delaware, a municipal corporation located
in New Castle County, Delaware, and any of its officers and employees
or their designee.
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.
A.
Prohibition of illegal discharges.
(1)
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 stormwater.
(2)
The commencement, conduct or continuance of any illegal discharge
to the MS4 is prohibited except as described as follows:
(a)
The following discharges are exempt from discharge prohibitions
established by this article:
[1]
Water line flushing;
[2]
Diverted stream flows;
[3]
Rising groundwaters;
[4]
Uncontaminated groundwater infiltration to separate storm sewers;
[5]
Uncontaminated pumped groundwater;
[6]
Discharges from potable water sources;
[7]
Foundation drains;
[8]
Air-conditioning condensate;
[9]
Irrigation water;
[10]
Springs;
[11]
Water from crawl space pumps;
[12]
Footing drains;
[13]
Individual residential vehicle washing;
[14]
Flows from riparian habitats and wetlands;
[15]
Dechlorinated swimming pool discharges; and
[16]
Discharges or flows from emergency fire-fighting activities.
(b)
Discharges specified in writing by the authorized enforcement
agency as being necessary to protect public health and safety.
(c)
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-stormwater discharge permitted
under an NPDES permit, waiver, or waste discharge order issued to
the discharger and administered under the authority of the United
States 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 MS4.
B.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence of illicit
connections to the MS4 is prohibited.
(2)
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.
(3)
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.
A.
Suspension due to illicit discharges in emergency situations. The
Code Enforcement Officer may, without prior notice, suspend MS4 discharge
access to a person when such suspension is necessary to stop an actual
or 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
authorized enforcement agency 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.
B.
Suspension due to the detection of illicit discharge.
(1)
Any person discharging to the MS4 in violation of this article may
have his or her MS4 access terminated if such termination would abate
or reduce an illicit discharge. The authorized enforcement agency
will notify a violator of the proposed termination of its MS4 access.
The violator may petition the authorized enforcement agency for a
reconsideration and hearing.
(2)
A person commits an offense if the person reinstates MS4 access to
premises terminated pursuant to this section, without the prior approval
of the authorized enforcement agency.
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.
A.
Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial activity, including construction
activity.
B.
Access to facilities.
(1)
The Code Enforcement Officers 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 authorized enforcement agency.
(2)
Facility operators shall allow the Code Enforcement Officers 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 stormwater, and the
performance of any additional duties as defined by state and federal
law.
(3)
The Town shall have the right to 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
stormwater discharge.
(4)
The Town 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.
(5)
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 Town and shall
not be replaced. The costs of clearing such access shall be borne
by the operator.
(6)
Unreasonable delays in allowing the Town access to a permitted facility
is a violation of a stormwater discharge permit and of this article.
A person who is the operator of a facility with a NPDES permit to
discharge stormwater associated with industrial activity commits an
offense if the person denies the authorized enforcement agency reasonable
access to the permitted facility for the purpose of conducting any
activity authorized or required by this article.
(7)
If the Town has been refused access to any part of the premises from
which stormwater is discharged, and the Code Enforcement Officer 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 authorized enforcement agency may seek issuance
of a search warrant from any court of competent jurisdiction.
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.
A.
Notice of violation. Whenever the Town finds that a person has violated
a prohibition or failed to meet a requirement of this article, the
authorized enforcement agency may order compliance by written notice
of violation to the responsible person. Such notice may require without
limitation:
(1)
The performance of monitoring, analyses, and reporting;
(2)
The elimination of illicit connections or discharges;
(3)
That violating discharges, practices, or operations shall cease and
desist;
(4)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(5)
Payment of a fine to cover administrative and remediation costs;
and
(6)
The implementation of source control or treatment BMPs.
B.
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.
C.
The Town, at its discretion, may file charges in Justice of the Peace
(JP) Court for violating this article of the Town Code. If needed,
the Town will contact DNREC's Office of Community Services'
Environmental Crimes Unit. All of DNREC's environmental officers
are certified police officers with full police powers.
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.