[HISTORY: Adopted by the Mayor and Council
of the City of New Castle as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-27-2017 by Ord. No. 509]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens and businesses of the City of
New Castle (the "City") through the regulation of nonstormwater discharges
to the storm drain system to the maximum extent practicable as required
by federal and state law. This article establishes methods for controlling
the discharge of pollutants into the municipal separate storm sewer
system (MS4) in order to comply with requirements of the City's
National Pollutant Discharge Elimination System (NPDES) permit. The
objectives of this article are to:
A.
Regulate the discharge of pollutants to the municipal separate storm
sewer system (MS4) by any user.
B.
Prohibit illicit discharges and connections to the municipal separate
storm sewer system.
C.
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 City, including, but not limited
to, the City Administrator, the Building Official, the Code Enforcement
Officers, and the City Engineer of the City.
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 City of New Castle, Delaware, a municipal corporation
located in New Castle County, Delaware, and any of its officers and
employees or their designee.
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 illicit discharge to enter the MS4, including but
not limited to any conveyances which allow any nonstormwater 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 firefighting
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.
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.
City Code Enforcement Officers shall administer, implement,
and enforce the provisions of this article. Any powers granted or
duties imposed upon such authorized enforcement personnel may be delegated
in writing by the City Administrator to persons or entities acting
in the beneficial interest of or in the employ of the City.
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.
A.
Prohibition of illicit discharges.
(1)
No person shall discharge or cause to be discharged into the MS4
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 illicit discharge
to the MS4 is prohibited except as described as follows:
(a)
Water line flushing;
(b)
Diverted stream flows;
(c)
Rising groundwaters;
(d)
Uncontaminated groundwater infiltration to separate storm sewers;
(e)
Uncontaminated pumped groundwater;
(f)
Discharges from potable water sources;
(g)
Foundation drains;
(h)
Air-conditioning condensate;
(i)
Irrigation water;
(j)
Springs;
(k)
Water from crawl space pumps;
(l)
Footing drains;
(m)
Individual residential vehicle washing;
(n)
Flows from riparian habitats and wetlands;
(o)
Dechlorinated swimming pool discharges; and
(p)
Discharges or flows from emergency firefighting activities;
Additionally.
(q)
Discharges specified in writing by the authorized enforcement
agency as being necessary to protect public health and safety; and
(r)
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 nonstormwater 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 a NPDES General Permit
for stormwater Discharges Associated with Construction Activity 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 City 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 City 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 City and shall
not be replaced. The costs of clearing such access shall be borne
by the operator.
(6)
Unreasonable delays in allowing the City 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 City 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 City 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 or occupying property through which a watercourse
passes, including 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, occupant 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 illicit 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 City of New Castle 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 City 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 City at its discretion may file charges in Justice of the Peace
(JP) Court for violating this article of the City Code. If needed,
the City 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 to the City Board of Adjustment
which shall have jurisdiction to hear and decide such appeals. The
notice of appeal must be received by the City within 10 calendar 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 Board of Adjustment shall be final unless appealed to the Delaware
Superior Court.
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 Board of Adjustment 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
legal and administrative costs. The property owner may file a written
protest with the City Administrator objecting to the amount of the
assessment within 10 calendar days of the date of the notice. The
City Administrator shall review the assessment and the grounds for
the protest and shall have authority to adjust the assessment only
if he determines that there has been an error in calculating the cost
of abatement or legal and administrative costs associated therewith.
If the amount due is not paid within a timely manner as determined
by the decision of the City Administrator 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 and collectible by the City
in the same manner as delinquent real estate taxes due the City. Any
person violating any of the provisions of this article shall become
liable to the City by reason of such violation. The liability shall
be paid in not more than 12 equal payments and shall also include
twelve-percent-per-annum interest on the total amount due.
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
any provision of this article, including sampling and monitoring expenses,
whether or not civil or criminal proceedings are required to compel
compliance or address violations.
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.
