(1) Procedure. If the Administrator determines that there is a failure to comply with the conditions of VESMP Permit and/or Land Disturbance/Grading Permit approval, or if land-disturbing activities have commenced without an ESC Plan, or SWM Plan if required, the following enforcement methodology shall be pursued. Each day the violation is found to exist shall be a separate offense for purposes of administrating the enforcement methodology.
A. First Notice to Comply. The Administrator may issue a First Notice to Comply. The First Notice to Comply shall set forth the violation, the actions necessary to remedy the violation, and the time period by which the violation shall have been remedied. In any instance in which land-disturbing activities have commenced without required Land Disturbance/Grading Permit approval the Administrator may require immediate compliance. In any other case, such time period shall take into account the following factors: i) risk of damage and/or proximity to natural resources; ii) impacts to adjacent properties; iii) nature, scale, scope, and/or duration of the violation; iv) violation history; v) seasonal weather limitations; and vi) any other factors that may pose harm to life, property, and/or water quality. The Administrator may authorize extensions of such time period based upon the aforesaid factors.
B. Second Notice to Comply. If a violation has not been remedied within the time period specified in the First Notice to Comply, including any extensions authorized by the Administrator thereto, the Administrator may issue a Second Notice to Comply. The Second Notice to Comply shall set forth the violation, which may include any newly observed violations, the actions necessary to remedy the violation, and the time period by which the violation shall have been remedied. In any instance in which land-disturbing activities have commenced without required Land Disturbance/Grading Permit approval the Administrator may require immediate compliance. In any other case, such time period shall take into account the factors listed in (a)(1)A above and also failure to address the violation within the time period set forth in the First Notice to Comply.
1. The Second Notice to Comply shall include a Consent Order that shall be executed and returned to the Administrator within a time period set forth under the Second Notice to Comply. Under the Consent Order the recipient of the Notices to Comply shall agree to remedy the violation and pay any associated civil penalties and/or charges assessed against them within the time period set forth in the Second Notice to Comply.
C. Stop Work Orders and Emergency Stop Work Orders. Upon any person's failure to remedy a violation within the time period specified in the First Notice to Comply the Administrator shall notify the County Administrator, or their designee, if the violation is ongoing. Upon receipt of such notification the County Administrator, or their designee, may issue a Stop Work Order. If not previously issued a Second Notice to Comply shall accompany the Stop Work Order.
1. Where a violation is causing or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth or otherwise substantially impacting water quality, the County Administrator, or their designee, may issue an Emergency Stop Work Order.
a. An Emergency Stop Work Order may be issued without first issuing a Notice to Comply or providing any other advance notice or procedures, however, if not previously issued a First Notice to Comply shall accompany the Emergency Stop Work Order.
b. An Emergency Stop Work Order shall provide an opportunity for the recipient to request a hearing before the County Administrator, or their designee, to affirm, modify, amend, or cancel such Emergency Stop Work Order. The County Administrator, or their designee, shall provide a recipient requesting a hearing with reasonable notice of the time and place of such requested hearing.
2. Stop Work Orders and Emergency Stop Work Orders shall require the recipient to immediately cease all land-disturbing activities until the violation has been remedied in accordance with the Notices to Comply, and Consent Order has been returned to the Administrator if applicable. The issuance of a Stop Work Order or Emergency Stop Work Order also shall authorize the Administrator to:
a. Revoke any Land Disturbance/Grading Permit associated with the violation. In the event of the revocation of a Land Disturbance/Grading Permit the owner or applicant shall be required to apply for a new Land Disturbance Grading Permit and re-submit any associated fees based on the current Erosion Control Fee Schedule, and successfully pass site compliance inspection before any land-disturbing activities can resume.
b. Enforce the terms of the associated financial guarantee of performance and maintenance given by the permittee.
c. Order or recommend that any other permit or license issued to the permittee, or to any other party, the activity to be performed under which can properly be considered to be dependent on or substantially related to the proper VESMP Permit and/or Land Disturbance/Grading Permit approval, be revoked until such time as the violation has ceased. This provision shall be deemed authority for any appropriate official of the County, or any town, where appropriate, to revoke such other permit or license. Such other permits or licenses shall include, but are not necessarily limited to, building permits, zoning permits and clearances, health permits, and other land-disturbing activity permits.
3. Stop Work Orders shall be rescinded immediately by the County Administrator, or their designee, upon the Administrator's determination that the violation has been remedied and any associated assessed civil penalties and/or charges have been paid.
D. Civil Penalties. Any person who has been issued a Second Notice to Comply may be subject to the following civil penalties:
1. For land-disturbing activity that disturbs an area measuring one acre or more of land or is part of a larger common plan of development or sale that disturbs one acre or more of land a civil penalty in the amount of $2,500.00 for the first offense and $5,000.00 for each subsequent offense thereafter shall be assessed. Violations subject to this section shall include the following:
a. Commencement of a land disturbing activity without an approved SWM Plan, if required, or without a SWPPP or VESMP Permit registration.
b. Failure to make the SWPPP available for review at the jobsite.
c. Failure to properly install Stormwater Management BMPs.
d. Operational deficiencies in Stormwater Management BMPs.
e. Failure to conduct required inspections; incomplete, improper, or missed inspections.
f. Discharges not in compliance with the requirements of Section 9VAC25-880-70 of the General Permit.
g. Any violation referenced under Section D.2 below.
h. Any other violation not specifically referenced herein.
2. For land-disturbing activity that disturbs an area measuring not less than 5,000 square feet but less than one acre of land and is not part of a larger common plan of development or sale that disturbs one acre or more of land a civil penalty in the amount of $2,000.00 for the first offense and $4,000.00 for each subsequent offense thereafter shall be assessed, the cumulative total of such civil penalties not to exceed $50,000 for each violation. Violations subject to this section shall include the following:
a. Commencement of land disturbing activity without an approved ESC Plan.
b. Failure to comply with the 19 Minimum Standards under Section 9VAC25-875-560.
c. Failure to obey a Stop Work Order.
d. Failure to stop work when a permit is revoked.
e. Failure to properly install erosion and sediment controls.
f. Any other violation not specifically referenced herein.
3. The Administrator shall reduce all such civil penalties assessed to the following civil charges if the violation is remedied, Consent Order is returned, and such assessed civil charges are paid in accordance with the applicable time period(s) set forth under the Second Notice to Comply:
a. Civil penalties assessed under D.1 shall be reduced to a civil charge in the amount of $750.00 for the first offense and $1,250.00 for each subsequent offense thereafter for each separate violation.
b. Civil penalties assessed under D.2 shall be reduced to a civil charge in the amount of $500 for the first offense and $1,000 for each subsequent offense thereafter for each separate violation.
E. Notice of Violation. If the Administrator determines that a violation has not been remedied, an executed Consent Order has not been returned to the Administrator, and/or associated assessed civil penalties and/or charges have not been paid, within the time period(s) specified in the Second Notice to Comply, or a Stop Work Order or Emergency Stop Work Order has been violated, the Administrator shall issue a Notice of Violation. The Notice of Violation shall specify all violations that remain outstanding and/or ongoing. Any person who has been issued a Notice of Violation may be subject to the following enforcement methods:
1. Civil Penalties. The Administrator may apply to the Circuit Court of Loudoun County for the following:
a. Collection of any assessed civil penalties that remain unpaid.
b. Assessment of additional civil penalties for any violations that remain outstanding and/or ongoing.
2. Civil Damages. The Administrator may file in the Circuit Court of Loudoun County a civil action for damages resulting from the violation, which damages shall apply in addition to any other charge or penalty provided in this chapter.
3. Criminal Penalties. The Administrator may apply to the Circuit Court of Loudoun County for criminal penalties in accordance with Code of Virginia Section 62.1-44.32(b), (c), and (d).
4. Injunctions and Other Relief. Notwithstanding any other relief or remedy available under this chapter, the Administrator may apply to the Circuit Court of Loudoun County for injunctive or such other equitable relief as might be appropriate in the case of a violation or threatened violation of any of the provisions of this Chapter, without the necessity of showing that an adequate remedy at law does not exist. An owner of property which has sustained damage or which is in imminent danger of being damaged, may apply to the Circuit Court of Loudoun County to enjoin a violation or a threatened violation of this Chapter, without the necessity of showing that an adequate remedy at law does not exist.
F. Service. All Notices to Comply, Consent Orders, Stop Work Orders, Emergency Stop Work Orders, Notices of Violation, and Civil Penalties authorized herein shall be served upon the owner of the property where the violation is located, permittee, or other person conducting the violation if someone other than the owner, by (i) delivery by facsimile, email, or other technology; (ii) mailing with confirmation of delivery to the address specified in the VESMP Permit or Land Disturbance/Grading Permit application, if available, or in the land records of the locality; or (iii) delivery at the site, to a person previously identified to the Administrator by the permittee or owner of the property.
G. Appeals. The owner, permittee, or person conducting a land-disturbing activity may appeal:
1. The issuance of any Stop Work Order and/or Notice of Violation to the Circuit Court of Loudoun County or other appropriate court provided that the appeal is filed within 30 days from the date of service of the Stop Work Order and/or Notice of Violation, as applicable.
2. The County Administrator's, or their designee's, decision to affirm, modify, amend, or cancel an Emergency Stop Work Order after hearing under Section (a)(1)C.1 above to the Circuit Court of Loudoun County or other appropriate court provided that the appeal is filed within 30 days from the date of such decision.
(1) Procedure. If the Administrator determines that there is an illicit discharge, a failure to maintain a private stormwater management facility in conformance with this Chapter, a failure to comply with VPDES Permit conditions, an unauthorized discharge, or any other violation of Sections 1096.02 and 1096.03, the following enforcement methodology shall be pursued. Each day the violation is found to exist shall be a separate offense for purposes of administrating the enforcement methodology.
A. First Notice to Comply. The Administrator may issue a First Notice to Comply. The First Notice to Comply shall set forth the violation, the actions necessary to remedy the violation, and the time period by which the violation shall have been remedied. In any instance in which a violation poses an imminent harm to life, property, and/or water quality the Administrator may require immediate compliance. In any other case, such time period shall take into account the following factors: i) risk of damage and/or proximity to natural resources; ii) risk of damage to the stormwater conveyance system and/or stormwater management facilities; iii) nature, scale, scope, and/or duration of the violation; iv) violation history; v) seasonal weather limitations; and iv) any other factors that may pose harm to life, property, and/or water quality. The Administrator may authorize extensions of such time period based upon the aforesaid factors.
B. Second Notice to Comply. If a violation has not been remedied within the time period specified in the First Notice to Comply, including any extensions authorized by the Administrator thereto, the Administrator may issue a Second Notice to Comply. The Second Notice to Comply shall set forth the violation, which may include any newly observed violations, the actions necessary to remedy the violation, and the time period by which the violation shall have been remedied. In any instance in which a violation poses an imminent harm to life, property, and/or water quality the Administrator may require immediate compliance. In any other case, such time period shall take into account the factors listed in (b)(1)A above and also failure to address the violation within the time period set forth in the First Notice to Comply.
1. The Second Notice to Comply shall include a Consent Order that shall be executed and returned to the Administrator within a time period set forth under the Second Notice to Comply. Under the Consent Order the recipient of the Notices to Comply shall agree to remedy the violation and pay any associated civil penalties and/or charges assessed against them within the time period set forth in the Second Notice to Comply.
C. Civil Penalties. Any person who has been issued a Second Notice to comply may be subject to the following civil penalties:
1. For violations of Section 1096.02 (Maintenance of the Stormwater System), or Section 1096.03 (Illicit Discharges) that do not pose imminent harm to life, property, and/or water quality a civil penalty in the amount of $1,500.00 for the first offense and $2,000.00 for each subsequent offense thereafter shall be assessed.
2. For violations of Section 1096.03 (Illicit Discharges) that pose an imminent harm to life, property, and/or water quality a civil penalty in the amount of $2,000.00 for the first offense and $4,000.00 for each subsequent offense thereafter shall be assessed. Violations subject to this section shall include the following:
a. Discharges that are causing or have potential to cause severe erosion to natural waterways and/or damage to the stormwater system infrastructure.
b. Discharges of regulated contaminants such as fuel oil, gasoline, diesel fuel, oils in any form, industrial solvents, chemicals, biological materials, and/or sewage.
c. Discharges that may contribute to degradation of stream water quality due to physical properties such as pH and/or temperature.
d. Any other discharge that may pose imminent harm to life, property, and/or water quality as determined by the Administrator.
3. The Administrator shall reduce all such civil penalties assessed to the following civil charges if the violation is remedied, Consent Order is returned, and such assessed civil charges are paid in accordance with the applicable time period(s) set forth under the Second Notice to Comply:
a. Civil penalties assessed under C.1 shall be reduced to a civil charge in the amount of $750.00 for the first offense and $1,000.00 for each subsequent offense thereafter for each separate violation.
b. Civil penalties assessed under C.2 shall be reduced to a civil charge in the amount of $1,500.00 for the first offense and $2,500.00 for each subsequent offense thereafter for each separate violation.
D. Notice of Violation. If the Administrator determines that a violation has not been remedied, an executed Consent Order has not been returned to the Administrator, and/or associated assessed civil penalties and/or charges have not been paid, within the time period(s) specified in the Second Notice to Comply, the Administrator shall issue a Notice of Violation. The Notice of Violation shall specify all violations that remain outstanding and/or ongoing. Any person who has been issued a Notice of Violation may be subject to the following enforcement methods:
1. Civil Penalties. The Administrator may apply to the Circuit Court of Loudoun County for the following:
a. Collection of any assessed civil penalties that remain unpaid.
b. Assessment of additional civil penalties for any violations that remain outstanding and/or ongoing.
2. Civil Damages. The Administrator may file in the Circuit Court of Loudoun County a civil action for damages resulting from the violation, which damages shall apply in addition to any other charge or penalty provided in this chapter.
3. Criminal Penalties. The Administrator may apply to the Circuit Court of Loudoun County for criminal penalties in accordance with Code of Virginia Section 62.1-44.32(b), (c), and (d).
4. Injunctions and Other Relief. Notwithstanding any other relief or remedy available under this chapter, the Administrator may apply to the Circuit Court of Loudoun County for injunctive or such other equitable relief as might be appropriate in the case of a violation or threatened violation of any of the provisions of this Chapter, without the necessity of showing that an adequate remedy at law does not exist. An owner of property which has sustained damage or which is in imminent danger of being damaged, may apply to the Circuit Court of Loudoun County to enjoin a violation or a threatened violation of this Chapter, without the necessity of showing that an adequate remedy at law does not exist.
E. Service. All Notices to Comply, Consent Orders, Notices of Violation, and Civil Penalties authorized herein shall be served upon the owner of the property where the violation is located and/or the person conducting the violation by (i) delivery by facsimile, email, or other technology; (ii) mailing with confirmation of delivery to the address specified in the land records of the locality; or (iii) delivery to a person previously identified to the Administrator by the owner.
F. Appeals.
1. Any person aggrieved by any action of the Administrator in the administration or enforcement of Section 1096.02 or Section 1096.03 of this Chapter may demand in writing a hearing by the County Administrator or their designee, provided that such written demand is filed with the Administrator within thirty (30) days of service of the notification of such action. Such hearing shall occur within ninety (90) days after the written demand for a hearing is filed with the Administrator.
2. Any person aggrieved by the hearing decision of the County Administrator or their designee regarding the administration or enforcement of Section 1096.02 or Section 1096.03 of this Chapter may within thirty (30) days of such decision, appeal the decision of the County Administrator to the Circuit Court of Loudoun County.
(c) Right of Entry.
(1) The Administrator, or any duly authorized agent of the Administrator, may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the enforcement of Sections 1096.01, 1096.02, and 1096.03.
(2) In accordance with a performance bond, the Administrator, or any duly authorized agent of the Administrator may enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions that are required by the conditions imposed by the Administrator on a land-disturbing activity when an owner, after proper notice, has failed to take acceptable action within the time specified.
(d) Cumulative Remedies. Unless otherwise provided, the remedies and enforcement actions set forth in this Chapter shall be cumulative, not exclusive, and it shall not be a defense to any action that one or more of the remedies set forth in this section has been sought or granted.
(Ord. 24-06. Passed 5-15-24.)