(A) Modifications.
(1) Modifications to review standards and criteria. The MSD Chief Engineer, in consultation with other applicable reviewing agencies, shall have the authority to make modifications to applicable EPSC standards/design requirements and exemptions set forth in this chapter or the MSD Design Manual, Standard Specifications and Standard Drawings to provide flexibility to deal with the unique characteristics of a site. Such modifications may be granted only upon a finding by the MSD Chief Engineer that the standards set forth in this subsection have been met.
(2) Modifications to controls. Changes to the location and placement of temporary non- structural or structural controls may be approved by the MSD Chief Engineer during construction plan review or, once construction has commenced, may be approved in the field by an inspector without the need for additional, formal review if the change is in accord with the MSD Design Manual, Standard Specifications and Standard Drawings. However, changes to the location or placement of permanent structural controls shall necessitate formal review and approval by MSD.
(3) Review standards for modifications. No modification shall be approved by MSD unless all of the following standards have been met.
(a) The requested modification is consistent with the purposes of this chapter and will not have adverse effects on the effectiveness to the plan to adequately control erosion and sedimentation as required by this chapter;
(b) The requested modification eliminates an unnecessary burden on the Permittee and is required to address some unusual aspect of the site or proposed development that is not shared by landowners in general; and
(c) Any potential adverse impacts resulting from the modification will be mitigated.
(B) Fees. A fee, charges, and expenses schedule may be established by MSD for the administration and management of the EPSC program created by this chapter, including fees to cover the costs of processing applications and variances, and conducting field inspections. No application for action required by this chapter shall be accepted until such fees are paid in full.
(C) Inspections.
(1) Inspection of land disturbing activities subject to this chapter shall be the primary responsibility of MSD. Assistance may be provided by environmental health officers, Department of Codes and Regulations Code Enforcement Officers, or duly authorized inspectors from any other municipal enforcement agency as appropriate, to enforce this chapter against MSD.
(2) To ensure compliance with approved plans and to examine field practices to determine if control measures are adequate to advance the purposes of this chapter, authorized enforcement agencies and inspectors shall have the power to periodically inspect any land disturbing activity upon presentation of appropriate identification and to review records of all inspections, repairs and modifications made by the permittee.
(3) Notice of such right of inspection shall be included in the site disturbance permit or other applicable permit, and such right shall include the right to inspect with or without notice and all such inspections shall be at the discretion of the inspecting authority.
(D) Enforcement.
(1) Civil offense. The violation of this chapter, including the violation of any plan approved or permit issued under this chapter, shall constitute a civil offense which may subject the violator to a civil fine and/or other remedial orders in accordance with this section.
(2) Complaints. MSD shall receive complaints, perform inspections and enforcement or route the complaint to the appropriate responsible enforcement agency.
(3) Enforcement procedures.
(a) 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;
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.
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 be 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 subsection (D)(3)(b) below.
(b) 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. 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 this chapter, and the inspector has complied with § 159.04(D)(3)(a), the inspector is authorized to issue a NOV to the permittee and co-permittees. The NOV shall be in a form prescribed by MSD and shall contain:
a. The date and time of issuance;
b. The name and address of the permittee to whom the NOV is issued;
c. The date and time the violation was committed;
d. The facts constituting the violation;
e. The section of the chapter violated;
f. The name of the inspector;
g. The civil fine that will be imposed for the violation; and
h. 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 MSD. 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 committed 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 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 NOV is stayed pending review.
6. Remedy a violation. 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.
(c) 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.
(4) Repeated violations. In cases in which the permittee has a record of two previous notices of violations causing adverse impact or off-site degradation within a two-year period, MSD shall be authorized to undertake any or all of the following actions:
(a) To refuse to accept applications for any development or land disturbing activity or to process any such application of the permittee;
(b) To revoke a general permit as it applies to any development or land disturbing activity carried out by the permittee; and
(c) To revoke the certification of any CCR who has been associated with serious or repeated violations of the provisions of this chapter.
(5) Appeals from the EPSC Board. Appeals shall be taken to a Kentucky court of competent jurisdiction pursuant to applicable Kentucky statutes.
(E) Penalties. Any person who violates this chapter, or any plan approved or permit granted hereunder, shall be subject to a fine of no more than $4,000 per violation and shall comply with such remedial orders as may be issued by the EPSC Board. Each act of violation and each day during which the violation exists after the period granted by subsections (D)(3)(a) and (D)(3)(b) to remedy the violation shall be deemed a separate offense.
(F) Education and training.
(1) On-site responsible personnel training.
(a) Within six months of the effective date of this chapter, all on-site responsible personnel shall be required to hold a certificate of attendance from a MSD-sponsored or approved training course. This requirement applies to persons employed by homebuilders, contractors, utilities, or any other person in a position of operational control over the land disturbing activity. This training shall be valid for a period of three years or until the course content is significantly modified due to ordinance modification or additional state or federal requirements, whichever occurs first.
(b) Further, the permittee shall certify to MSD at the time of plan submittal that a person holding an attendance certificate shall be on the site during construction or development activity to such degree as to be in operational control over the land distributing activity and provide continuing inspections in accordance with § 159.04(A). This person may include but is not limited to a foreman, developer, construction manager, or property owner. The name of this person shall be provided to MSD as soon as it is available, but no later than the time that notification of construction or disturbance is filed with MSD.
(c) MSD shall maintain a list of attendees to all training programs and provide confirmation of attendance.
(2) Training and certification.
(a) Agency inspector training and certification. Within six months of the effective date of this chapter, all agency inspectors shall be required to attend an MSD-sponsored or approved training course. Each inspector shall be required to achieve certification through this course to conduct site inspections, issue violations, negotiate on-site compliance, and refer violations for formal enforcement actions. This certification shall be valid for a period of three years, upon which the inspector must be re-certified.
(b) Agency plan reviewer training and certification. Within six months of the effective date of this chapter, all agency plan reviewers are required to attend an MSD-sponsored or approved training course. Each plan reviewer shall be required to achieve certification through this course to conduct plan reviews, pre-construction site meetings, and permit negotiations. This certification shall be valid for a period of three years, upon which the plan reviewer must be re-certified.
(c) Qualified plan preparer training. Qualified plan preparers, including but not limited to professional engineers and landscape architects, shall be strongly encouraged to attend training sessions for plan reviewers and inspectors, as space is available. MSD may also, at its discretion, develop a separate course for qualified plan preparers. A fee may be established for this training based on the actual cost to develop and administer this course.
1. The option of a CCR is offered to allow for self-monitoring of the EPSC plan implementation. Based on demand, MSD may sponsor or approve a training course to certify private individuals as CCRs. These certifications shall be valid for a period of not more than three years. MSD may extend this period; however, continuing education shall be required for maintenance of the CCR. At MSD's sole discretion, a fee may be established for this training based on the actual cost to develop and administer this course.
2. MSD, in its discretion, may provide incentives for the use of a CCR.
(3) Revocation of certifications.
(a) Certifications may be revoked by MSD for repeated violations of the provisions of this chapter, activities that result in significant adverse impact or off-site degradation, or for willful disregard in implementing the intent of the certification programs. MSD shall appoint a hearing officer to hear appeals of revocation actions. A third party may bring action for revocation of a certification. These actions shall be presented to the MSD hearing officer for decisions.
(b) Any revocation action shall be supported by documentation as deemed appropriate by the hearing officer. The hearing officer may establish penalty amounts up to $500 per occurrence depending on the nature of the offense. Revocation of certifications shall be for at least one year. Re-certification shall be based on attending the training courses and paying all appropriate fees. Re-certification will only be allowed one time in a three-year period from the date of revocation.
(1994 Jeff. Code, § 159.05) (Jeff. Ord. 28-2000, adopted and effective 11-21-2000; Jeff. Am. Ord. 26-2001, adopted and effective 9-25-2001; Lou. Metro Am. Ord. No. 186-2007, approved 10-1-2007)