[HISTORY: Adopted by the Mayor and Council
of the Town of Middletown as indicated in article histories. Amendments
noted where applicable.]
[Adopted 7-2-2018 by Ord. No. 18-06-01]
A.
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Middletown through
the regulation of nonstormwater discharges to the storm drainage system.
This article 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.
B.
The objectives of this article are to:
(1)
Regulate the contribution of pollutants to the municipal separate
storm sewer system (MS4) by stormwater discharges by any user;
(2)
Prohibit illicit discharges and connections to the MS4;
(3)
Prevent nonstormwater discharges, generated as a result of spills,
inappropriate dumping or disposal, to the MS4; and
(4)
Establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
article.
For purposes of this illicit discharge article, the following
shall mean:
Schedules of activities, prohibitions of practices, general
good housekeeping practices, pollution prevention and educational
practices regarding the discharge of pollutants directly or indirectly
to stormwater, receiving waters or stormwater 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.
A plan required by the NPDES permit that describes how the
quality of stormwater discharged from the MS4 will be controlled by
incorporating activities and measureable goals such as:
Public education and outreach (i.e., website, workshops, trainings);
Public involvement and participation;
Illicit discharge detection and elimination;
Construction site stormwater runoff control;
Post-construction stormwater management; and
Pollution prevention and good housekeeping.
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
these include 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.
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 existing or potential hazard to human
health, safety, property or the environment, when improperly treated,
stored, transported, disposed of or otherwise managed.
Any direct or indirect nonstormwater discharge to the storm
drain system, except as exempted by this article.
An illicit connection is defined as either of the following:
Any drain or conveyance, whether on the surface or subsurface,
which allows any illegal discharge to enter the storm drain system,
including, but not limited to, any conveyances that allow any nonstormwater
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 an
authorized enforcement agency; or
Any drain or conveyance connected from a commercial or industrial
land use to the storm drain system that has not been documented in
plans, maps or equivalent records and approved by an authorized enforcement
agency.
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26 (b)(14).
The system of conveyances, owned and operated by the Town,
designed or used for collecting or conveying stormwater.
A permit issued by the US Environmental Protection Agency
(EPA) or by the State of Delaware, which 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. The
permit contains limits on what can be discharged, monitoring and reporting
requirements, and other provisions to ensure that the discharge does
not hurt water quality or people's health.
Any discharge to the storm drain system that is not composed
entirely of stormwater.
Any kind of oil in any form, including but not limited to
petroleum, fuel oil, crude oil, synthetic oil, motor oil, bio-fuel,
cooking oil, grease, sludge, oil refuse, and oil mixed with waste.
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.
A substance or mixture of substances intended to prevent,
destroy, repel, or migrate any pest, or substances intended for use
as a plant regulator, defoliant, or desiccant.
Anything which causes or contributes to pollution. Pollutants
may include, but are not limited to, any of the following:
Paints, varnishes and solvents;
Oil and other automotive fluids;
Nonhazardous liquid and solid wastes and yard wastes (including
grass clippings);
Refuse, rubbish, garbage, litter or other discarded or abandoned
objects, ordinances 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 and pet waste;
Wastes and residues that result from constructing a building
or structure; and
Noxious or offensive matter of any kind.
Any building, lot, parcel of land or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Publicly owned facilities by which stormwater is collected
and/or conveyed, including but not limited to any of the following:
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 BMPs 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, in complying
with the general permit for discharges of stormwater associated with
industrial activity.
Any water or other liquid, other than uncontaminated stormwater,
discharged from a facility.
The specific prohibitions and requirements in this section do
not include all the discharges prohibited, but are provided to address
specific discharges that are frequently found or are known to occur.
A.
No person shall release or allow to be released any of the following
substances into the MS4:
(1)
Any new or used petroleum product.
(2)
Any industrial waste.
(3)
Any hazardous substance or hazardous waste, including household hazardous
waste.
(4)
Any domestic sewage or septic tank waste, grease trap or grease interceptor
waste, holding tank waste, or grit trap waste.
(5)
Any garbage, rubbish or other waste.
(6)
Any new or used paints, including latex-based paints, oil-based paints,
stains, varnish, and primers, as well as cleaning solvents and other
associated products.
(7)
Any yard waste that has been moved or gathered by a person.
(8)
Any wastewater that contains soap, detergent, degreaser, solvent,
or surfactant-based cleaner from a commercial motor vehicle wash facility;
from any vehicle washing, cleaning, or maintenance at any new or used
motor vehicle dealership, rental agency, body shop, repair shop, or
maintenance facility; or from any washing, cleaning or maintenance
of any business or commercial or public service vehicle, including
a truck, bus or heavy equipment.
(9)
Any wastewater from a commercial mobile power washer or from the
washing or other cleaning of a building exterior that contains soap,
detergent, degreaser, solvent, or any surfactant-based cleaner.
(10)
Any wastewater from commercial floor, rug, or carpet cleaning.
(11)
Any wastewater from the wash down or other cleaning of pavement
that contains any soap, detergent solvent, degreaser, emulsifier,
dispersant, or other cleaning substance; or any wastewater from the
wash down or other cleaning of any pavement where any spill, leak,
or other release of oil, motor fuel, or other petroleum hazardous
substance has occurred, unless all such materials have been previously
removed.
(12)
Any effluent from a cooling tower, condenser, compressor, emissions
scrubber, emission filter or the blowdown from a boiler.
(13)
Any ready-mixed concrete, mortar, ceramic, or asphalt-based
material or discharge resulting from the cleaning of vehicles or equipment
containing, or used in transporting or applying, such material.
(14)
Any runoff, wash-down water or waste from any animal pen, kennel,
fowl or livestock containment area, or any general pet wastes.
(15)
Any filter backwash from a swimming pool or fountain, except
that nothing in this article shall be construed as to require the
alteration of the filter discharge plumbing of an existing swimming
pool, fountain or spa if such plumbing was compliant with applicable
state, federal, and local regulations at the time of construction.
(16)
Any swimming pool, fountain or spa water or other water containing
a harmful level of chlorine (>0.1 parts per million).
(17)
Any discharge from water line disinfection by super chlorination
if it contains a harmful level of chlorine (>0.1 parts per million)
at the point of entry into the MS4 or surface waters.
(18)
Any contaminated runoff from a vehicle wrecking or storage yard.
(19)
Any substance or material that will damage, block, or clog the
MS4.
(20)
Any release from a petroleum storage tank (PST), or any leachate
or runoff from soil contaminated by a leaking PST; or any discharge
of pumped, confined, or treated wastewater from the remediation of
any such PST release, unless the discharge has received an NPDES permit
from the state.
(21)
Any other discharge that causes, or contributes to causing,
the Town to violate a state water quality standard, the Town's
NPDES permit, or any state-issued discharge permit for discharges
from its MS4.
B.
No person shall release or cause to be released into the MS4 any harmful quantity of sediment, silt, earth, soil, or other material associated with clearing, grading, excavation or other construction activities in excess of what could be retained onsite or captured by employing sediment and erosion control measures, except as allowed for in conformance with § 145-4 (Exempt discharges).
C.
No person shall use pesticides, herbicides, or fertilizers except
in accordance with manufacturer recommendations. Pesticides, herbicides
and fertilizers shall be stored, transported and disposed of in a
manner to prevent release to the MS4.
D.
No person shall tamper with, destroy, vandalize, or render inoperable
any BMPs that have been installed for the purpose of eliminating or
minimizing pollutant discharges, nor shall any person fail to install
or fail to properly maintain any BMPs that have been required by the
Town or by other local, state, or federal jurisdictions.
Unless identified as a significant source of pollutants to waters
of the state, the following nonstormwater discharges are examples
of activities allowed to enter the MS4. Other activities may apply
if substantiated by permittees within the BMP menu:
A.
Water line flushing performed by a government agency.
B.
Diverted stream flows.
C.
Rising groundwater.
D.
Uncontaminated groundwater infiltration to separate storm sewer.
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 (<1 ppm).
P.
Discharges or flows from firefighting activities.
Q.
Other allowable discharges to consider: street wash waters; and dye
testing for the purpose of investigating illicit connections or discharges.
No person shall discharge or cause to be discharged through
an illicit connection to the MS4 operated by the Town any domestic
sewage, noncontact cooling water, process wastewater, or other industrial
waste (other than stormwater).
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, prior illicit
connections, 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.
D.
Any owner or person responsible for a property or premises that is
or may be the source of an illicit discharge, shall be required to
implement, at the owner's or person's expense, the BMPs
necessary to prevent the further discharge of pollutants to the MS4.
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 compliant with the provisions
of this section.
A.
Right of entry. When any Code Official has reasonable cause to believe
that a code violation exists, or when entry is required for periodic
inspections and monitoring to determine compliance, then they are
authorized to enter the structure or premises at reasonable times
to inspect. Prior to inspection, the Code Official must make reasonable
efforts to locate the owner or other person having charge or control
of the structure or premises to request entry. If entry is refused
or not obtained, the Code Official is authorized to pursue recourse
as provided by law.
A.
In the event the Town finds that a person has violated a requirement
of this article, a written notice of violation (NOV) shall be issued
to the responsible person. Such NOV may require, without limitation,
the following:
(1)
Performance of monitoring, analyses, and reporting;
(2)
Elimination of illicit connections or discharges;
(3)
Cease and desist of the violating discharges, practices, or operations;
(4)
Abatement or remediation of stormwater pollution or contamination;
(5)
Restoration of any affected property;
(6)
Payment of a fine to cover administrative and remediation costs;
and
(7)
Implementation of source control or treatment BMPs.
B.
If abatement of a violation and/or restoration of the affected property
is required, the NOV shall set forth a deadline within which such
remediation or restoration must be completed. Said NOV shall further
advise that, should the violator fail to remediate or restore within
the established deadline, the work will be done by a designated government
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 the Department of Natural Resources and Environmental
Control (DNREC).
Any person receiving an NOV may appeal the determination of
the authorized enforcement agency to the Mayor and Council of Middletown.
The notice of appeal must be received within 10 days from the date
of the NOV. A hearing on the appeal shall take place within 15 days
from the date of receipt of the NOV. The decision of the Mayor and
Council shall be final.
If the violation has not been corrected pursuant to the requirements
set forth in the NOV, or, in the event of an appeal, within 15 days
of the decision of the Mayor and Council to uphold the decision of
the authorized enforcement agency, 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 Town 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 that
would create further violations or compelling the person to perform
abatement or remediation of the violation.
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.
