(A) Civil offense. The violation of this chapter, including the violation of any plan approved or permit issued under this chapter, shall constitute a civil offenses which may subject the violation to a civil fine and/or other remedial orders in accordance with this section.
(B) Complaints. The MSD shall receive complaints, perform inspections and enforcement, or route the complaint to the appropriate responsible enforcement agency.
(C) Negotiated compliance.
(1) Applicability. It is the intent of this chapter that negotiated compliance be pursued and secured whenever practicable and effective prior to alternative enforcement measures being invoked. However, where clearing or other land disturbing activity has proceeded without an approved plan, issuance of a site disturbance permit, and proper notice of construction under this chapter, or where a violation is causing or has the imminent ability to cause adverse impacts or off-site degradation, the inspector shall immediately issue a notice of violation and stop work order. When clearing or other land disturbing activity has proceeded without proper notice of construction only, the inspector shall be authorized to immediately issue a notice of violation and, as necessary, a stop work order. Failure of a properly approved, installed, and maintained plan to contain sediment on-site shall not alone constitute off-site degradation or a violation of this chapter; provided, remedy of such is performed by the contractor during the course of same day activities.
(2) Process. When the inspector, based on personal observation or investigations, has reasonable cause to believe that a person has committed a violation of this chapter or any plan approved or permit granted hereunder, the inspector shall undertake a negotiated compliance process as set forth below unless circumstances dictate alternative compliance measures. This negotiated compliance process shall consist of:
(a) A warning to the on-site permittee of any deficiencies;
(b) An explanation of necessary corrective action; and
(c) Specification of a reasonable time frame within which such corrective action shall occur (no more than 48 hours, unless extenuating circumstances such as weather or complexity of repairs or modifications justify a longer time frame).
(3) Documentation. The inspector shall document the negotiated compliance process with a written notice to the permittee setting forth the identified deficiency, the request for corrective action, and the time frame for compliance. The documentation process shall include:
(a) A copy of the written notice shall be placed in the appropriate agency file;
(b) A copy shall be given to the owner, contractor’s representative, or responsible person on site; and
(c) In the event that no authorized person is on-site and that the inspector is not successful in contacting the permittee(s), a copy of the notice to comply shall be sent certified mail to the permittee(s).
(4) Compliance review. At the end of the time period specified above, an inspector shall perform a follow-up site inspection to determine whether compliance has been achieved. Depending on that determination, the following actions may occur.
(a) Corrective action performed. If the identified deficiencies have been corrected, the inspector shall issue an inspection report stating that fact and the site shall be returned to a normal construction review status.
(b) Corrective action not performed. If the identified deficiencies have not been corrected, further actions may be initiated as outlined in division (B) below.
(D) Notice of violation/stop work order. If the negotiated compliance process fails to produce necessary corrective action, the inspector shall be authorized to issue a notice of violation (NOV). A stop work order shall be issued in conjunction with the NOV when the violation is causing, or has the imminent ability to cause, adverse impacts or off-site degradation, or in other circumstances as deemed necessary by the inspector.
(1) Form of NOV and issuance.
(a) Issuance of a NOV initiates enforcement proceedings for violations of this chapter. Where the inspector, based upon personal observation or investigation, has reasonable cause to believe that a person has committed a violation of the chapter, and the inspector has complied with division (A) above, the inspector is authorized to issue a NOV to the permittee and co-permittees.
(b) The NOV shall be in a form prescribed by the MSD and shall contain:
1. The date and time of issuance;
2. The name and address of the permittee to whom the NOV is issued;
3. The date and time the violation was committed;
4. The facts constituting the violation;
5. The section of the chapter violated;
6. The name of the inspector;
7. The civil fine that will be imposed for the violation; and
8. A statement informing the permittee to whom the NOV is issued of the right to appeal the NOV or to contest the proposed civil penalty.
(2) Stop work order. Issuance of a stop work order shall result in a suspension of the project development or site plan approval, and except for work related to remediation of the violation, no additional land disturbing activity shall occur and no additional grading or building permits shall be issued until the violation is resolved to the enforcement agency’s satisfaction. Stop work orders shall specifically state the provisions of this chapter being violated.
(3) Service of NOV and stop work order. Service of a NOV or stop work order shall be by personal service to the on-site supervisory personnel at the site, by posting a copy of the NOV and any stop work order at the site, and by certified mail to the permittee.
(4) Compliance notice. When compliance measures specified in the NOV are satisfactorily completed, the permittee shall notify the MSD. The MSD shall re-inspect the site no later than the following work day after notification by the permittee. Upon acceptance, the inspector shall provide a written notice of compliance to the permittee and place such letter in the appropriate agency file.
(5) Appeal. When an NOV is issued, the person to whom the NOV is issued shall respond to the NOV within seven days of the date the NOV is issued by either remedying the violation and paying the civil fine set forth in the NOV or requesting, in writing, a hearing before the EPSC Board to contest the NOV. If the person fails to respond to the NOV within seven days, the person shall be deemed to have waived the right to a hearing to contest the NOV and the determination that a violation was commuted shall be considered final. In this event, the EPSC Board shall enter a final order determining that the violation was committed and imposing the civil fine set forth in the NOV. Filing of an appeal does not stay the effect or the obligations of a stop work order or a NOV unless otherwise ordered by the designated official hearing such appeal, based on a demonstration by the permittee issued the NOV of a substantial likelihood of prevailing on the merits of the appeal, and the absence of adverse impact if the order or the NOV is stayed pending review.
(6) Immediate action. Nothing contained in this chapter shall prohibit the MSD from taking immediate action in the court of appropriate jurisdiction to remedy a violation of this chapter when there is reason to believe that the existence of the violation presents a serious threat to the public health, safety, and welfare or, if in the absence of immediate action, the effects of the violation will be irreparable or irreversible.
(E) The EPSC Board shall hear all contested NOVs.
(1) If a person to whom the NOV is issued requests a hearing before the EPSC Board, the EPSC Board shall schedule the hearing within 14 days unless all parties mutually agree to a continuance.
(2) Evidence against the person charged with the violation shall be presented; the person cited may be represented by counsel. The EPSC Board shall take all testimony under oath and may subpoena alleged violators, witnesses, and evidence to its hearing.
(3) Any person not appearing at a duly scheduled hearing shall be deemed to have waived the right to a hearing and the EPSC Board may enter its final decision.
(4) The EPSC Board shall hear the evidence presented and based thereon shall render its decision and final order, which may uphold the NOV; dismiss it; order remedies and corrective action or a penalty; or some combination thereof.
(Ord. 26, passed 9-25-2001)