drainage structure

 

City of Paris, Tennessee

Enforcement Response Plan

(ERP)

June 2017

This document  addresses  available  types  of  enforcement  responses  as  well  as  shows  an enforcement action matrix for inspector reference for failure to comply with construction requirements,  illicit  discharge  removal  and  post-construction  requirements.  The ERP is included as part of the City’s Small MS4 General NPDES Permit. This plan is a guide; any of the enforcement responses may be used at the City’s discretion. The City may also choose to pursue an enforcement case by skipping intermediate steps.

 

 

I.  Description of Each Type of Enforcement Response

 A.  Verbal Warnings

1.  At a minimum, verbal warnings must specify the nature of the violation and required corrective action.

2.  Verbal warning may be given at the discretion of the inspector when it appears the condition can be corrected by the violator within a reasonable time, which time shall be approved by the inspector.

  B.  Written Notices

1.  Written notices must stipulate the nature of the violation and the required corrective action

2.  Within ten (10) days of a notice of violation (NOV), an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted to the City of Paris.

3.  ubmission of this NOV response plan in no way relieves the discharger of liability for any violations occurring before or after receipt of the notice of violation.

4.  Monetary penalties (civil and administrative penalties) may be assessed for NOVs at the City’s discretion.

 

    C.  Citations with Administrative Penalties

1.  Consent Orders

a)  The City Paris is empowered to enter into consent orders, assurances of voluntary compliance, or other similar documents establishing an agreement with the person responsible for the noncompliance.

b)  A consent order will include specific action to be taken by the person to correct the noncompliance within a time period also specified by the order.

c)  A consent order has the same force and effect as administrative orders such as the show cause hearing and the compliance order.

2.  Show Cause Hearing

a)  The City of Paris may order any person who violates this chapter or permit or order issued hereunder, to show cause why a proposed enforcement action should not be taken.

b)  A notice for this hearing shall be served on the person specifying the time and place for the meeting, the proposed enforcement action and the reasons for the proposed enforcement action, and a request for the violator to show cause why this proposed enforcement action should not be taken.

c)  The notice of the meeting shall be served personally or by registered or certified mail (return receipt requested) at least ten (10) days prior to the hearing.

3.  Compliance Order

a)  When the City of Paris finds that any person has violated or continues to violate this chapter or a permit or order issued thereunder, he may issue an order to the violator directing that, following a specific time period, adequate structures or devices be installed and/or procedures implemented and properly operated.

b)  Orders may also contain such other requirements as might be reasonably necessary and appropriate to address the noncompliance, including the construction of appropriate structures, installation of devices, self-monitoring, and management practices.

c)  Monetary penalties (civil and administrative penalties) will be assessed with the compliance order.

  D.  Stop Work Orders

1.  Cease and Desist Order/Stop Work Order

a)  The MS4 (the City) has the authority issue stop work orders that require construction activities to be halted , except for those activities directed at cleaning up, abating discharge, and installing appropriate control measures.

b)  When the City of Paris finds that any person has violated or continues to violate this chapter, or any permit or order issued hereunder, the City of Paris stormwater entity  may issue a stop work order or an order to cease and desist all such violations and direct those persons in noncompliance to:

i.   Comply forthwith; or

ii.  Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation; including halting operations except for terminating the discharge and installing appropriate measures.

c)  Monetary penalties (civil and administrative penalties) will be assessed with the stop order/cease and desist order.

  E.  Suspension, Revocation or Modification of Permit

1.  Withholding of Plan Approvals or Other Authorization

a) Where a facility is in noncompliance, the ERP shall address how the MS4’s own approval process affecting the facility’s ability to discharge to the MS4 can be used to abate the violation.

2.  The City of Paris may suspend, revoke or modify the permit authorizing the land development project or any other project of the applicant or other responsible person within the City.

3.  A suspended, revoked or modified permit may be reinstated after the applicant or other responsible person has taken the remedial measures set forth in the Notice of Violation or has otherwise cured the violation(s) described therein, provided such permit may be reinstated upon such conditions as the City of Paris may deem necessary to enable the applicant or other responsible person to take the necessary remedial measures to cure such violation(s).

4.  Whenever there is a conflict between any standard contained in this chapter and in the BMP manual adopted by the City under this ordinance, the strictest standard shall prevail.

 

  F.  Additional Measures

1.  Civil Penalties

a)  Any person who shall commit any act declared unlawful under this chapter, who violates any provision of this chapter, who violates the provisions of any permit issued pursuant to this chapter, or who fails or refuses to comply with any lawful communication or notice to abate or take corrective action by the City of Paris, shall be guilty of a civil offense.

b)  Under the authority provided in Tennessee Code Annotated § 68-221-1106, the City declares that nay person violating the provisions of this chapter may be assessed a civil penalty by the City of Paris of not less than fifty dollars ($50.00) and no more than five thousand dollars ($5,000.00) per day for each day of violation.

c)  Each day of violation shall constitute a separate violation.

d)  The City of Paris may consider the following in assessing civil penalties for violations:

(1)  The harm done to the public health or the environment;

(2)  Whether  the  civil   penalty  imposed  will  be  a  substantial economic deterrent to the illegal activity;

(3)  The economic benefit gained by the violator;

(4)  The amount of effort put forth by the violator to remedy this violation;

(5)  Any unusual or extraordinary enforcement costs incurred by the municipality.

(6)  The amount of penalty  established by ordinance or resolution for specific categories of violations; and

(7)  Any equities of the situation which outweigh the benefit of imposing any penalty or damage assessment.

2.  Recovery of Damages and Costs

In addition to civil penalties, the City may recover:

a)  All damages proximately caused by the violator to the City, which may include reasonable expenses incurred in investigating violations of, and enforcing compliance with, this chapter, or any other actual damages caused by the violation.

b) The costs of the City’s maintenance of stormwater facilities when the user of such facilities fails to maintain them as required by this chapter.

3.  Referral to TDEC

a)  Where the City has used progressive enforcement to achieve compliance with this ordinance, and in the judgment of the City has not been successful, the City may refer the violation to TDEC.

b)  For the purposes of this provision, “progressive enforcement” shall mean two (2) follow-up inspections and two (2) warning letters.

c)  Enforcement referrals to TDEC must include, at a minimum, the following:

(1)  Construction project or industrial facility location

(2)  Name of owner or operator

(3) Estimated construction project or size or type of industrial activity  (including SIC code, if known)

(4) Records of communications with the owner or operator   regarding the violation, including at least two follow-up inspections, two warning letters or notices of violation, and any response from the owner or operator.

4.  Legal Action/Other Remedies

a)  The City may bring legal action to enjoin the continuing violation of this chapter, and the existence of any other remedy, at law or equity, shall be no defense to any such actions.

b)  The remedies set forth in this section shall be cumulative, not exclusive, and it shall not be a defense to any action, civil or criminal, that one (1) or more of the remedies set forth herein has been sought or granted.

 

II.  NPDES Permit Referrals

A.  Through any means of the City or Stormwater Management Program, if a known project site  involving a construction activity or an industrial stormwater discharge where the discharge should also be covered by a state NPDES permit, is found to not have a state NPDES permit, the City of Paris will notify  TDEC  about  this  discharge  through  the  local  EFO.  The  following information will be supplied to the local EFO:

1.  Construction project or industrial facility location;

2.  Name of owner or operator;

3.  Estimated construction project size or type of industrial activity (including SIC code, if known); and

4.  Records of communication with the owner or operator regarding filing requirements.

 

III.  Recordkeeping & Tracking

A.  All non-compliance instances are tracked both electronically and using paper files by the City. This tracking includes all records and documents related to stormwater ordinance violations at the site and are stored in the enforcement case file.

B.  The minimum required documentation must include the following items:

1.  Name of owner/operator;

2.  Location of construction project or industrial facility;

3.  Description of violation;

4.  Required schedule for returning to compliance;

5.  Description of enforcement responses used, including escalated responses if repeat violations occur or violations are not resolved in a timely manner;

6.  Accompanying documentation of enforcement response (e.g., notices of noncompliance, notices of violation, etc.);

7.  Any referrals to different departments or agencies; and

8.  Date violation was resolved.

 

C.  The City uses the non-compliance records and tracking to identify any chronic violators, and uses this information to work toward reducing the rate of noncompliance relapse.

1.  This will include tracking violations, applying incentives and/or disincentives, and increasing the inspection frequency of the operator’s sites.

2.  If the operator fails to take corrective actions, the City will pursue progressive enforcement and, if need be, perform the necessary work and assess against the owner the costs incurred for repairs.

 

D.  For BMPs on public property or within public rights-of-way, the City will document that appropriate maintenance and/or repairs have been completed (e.g., using photos, maintenance logs, contractor invoices).

 

IV.  Enforcement Action Matrices

 

    A.  Noncompliance with Construction Requirements

1.  See Table 1 for the enforcement action matrix for noncompliance with construction requirements. In general, the severity of the enforcement measure increases moving down the matrix.

2.  For parties who fail to obtain a land disturbance permit before starting work, the initial enforcement action may be more stringent than for a project that has an approved plan but has failed to comply with the approved plan.

a)  The City has the ability to stop project work for non-permittees.

Stopping work generally includes all work except what is needed to address stormwater and/or safety until the project has an approved stormwater plan.

b)  Non-permittees may be required to perform corrective actions

as advised by the City and to develop the required erosion control and/or stormwater plan submittals to submit to the City for review and approval.

c)  The City will not issue a land disturbance permit where work began prior to receiving approval from the City. However, the City may issue another approval to the non-permittee following the plan review and approval process similar to what would have happened if the project plans had been submitted for advance review and permit approval before work began.

d)  Once the corrective actions have been successfully completed and the submitted stormwater plan has been approved by the City, the City will issue the violator a written notice that the situation has been resolved.

e)  If the corrective actions or the submitted plan cannot be approved, the City should also send a written notice to the violator describing what was deficient and what step(s) are needed to resolve the situation.

 

 

Table 1. Enforcement Action Matrix for Noncompliance with Construction Requirements.

 

 

 

 

 

 

 

 

 

 

 

 

 

Type of Violation

 

 

 

 

 

 

 

 

 

 

Failure to Obtain Land Disturbance Permit Prior to Starting Work

 

 

 

 

Minor Violations (Failure to Install, Maintain or Upgrade Measures on Erosion and Sediment Control Plan)

 

 

 

Minor Violations (Failure to Install, Maintain or Upgrade Measures on Erosion and Sediment Control Plan for a Priority Area)

Major Violation (Failure to Install, Maintain or Upgrade Measures on Erosion and Sediment Control Plan that Resulted in a Sediment Release from the Project Site  

 

 

 

 

 

 

 

 

 

 

Repeat Violation by a Party (Same Site)

 

 

 

 

 

 

 

Repeat Violation by a Party (Different Site than initial Noncompliance Site)

 

Enforcement Measures For Use (Increasing Severity Moving Down the Chart)

 

 

Cease and Desist Order or Consent Order

 

Verbal and/or Written Warning

 

Verbal and/or Written Warning

NOV and/or Verbal or Written Warning NOV and/or Verbal or Written Warning NOV and/or Verbal or Written Warning
 

NOV

 

NOV

Compliance Order or Consent Order Compliance Order or Consent Order Compliance Order or Consent Order
 

 

 

 

 

 

 

 

 

Legal Action

 

Compliance Order or Consent Order

 

Compliance Order or Consent Order

Cease and Desist Order or Consent Order Cease and Desist Order or Consent Order Cease and Desist Order or Consent Order
Cease and Desist Order or Consent Order Cease and Desist Order or Consent Order Suspension, Revocation or Modification of Permit Suspension, Revocation or Modification of Permit Suspension, Revocation or Modification of Permit
 

Suspension, Revocation or Modification of Permit

 

Suspension, Revocation or Modification of Permit

 

 

 

 

Legal Action

 

 

 

 

Legal Action

 

 

 

 

Legal Action

 

Legal Action

 

Legal Action

This plan is a guide; any of the enforcement responses may be used at the City’s discretion and the City may choose to escalate an enforcement case by skipping intermediate steps. Penalties (Civil, Recovery of Damages and Costs, Etc.) may be assessed as described in the stormwater ordinance and as allowed by law at the City’s discretion.

 

B.  Failure to Remove Illicit Discharges

 

1.  See Table 2 for the enforcement action matrix for failure to remove illicit discharges.

2.  The action matrix was set up to provide varying suggested degrees of response to noncompliance documented by the City.

3.  In general, the severity of the enforcement measure increases moving down the matrix.

 

Table 2. Enforcement Action Matrix for Failure to Remove Illicit Discharges.

 

 

 

 

 

Type of Violation

 

 

 

First Failure to Remove illicit Discharge

 

 

 

Repeat Violation by a Party (Same Site)

Repeat Violation by a Party (Different Site than initial Noncompliance Site)
 

 

 

 

 

 

Enforcement Measures For Use (Increasing Severity Moving Down the Chart)

 

Verbal and/or Written Warning

NOV and Verbal and/or Written Warning  

NOV and Verbal Warning and/or Written Warning

Compliance Order or Consent Order
 

NOV

Cease and Desist Order or Consent Order Compliance Order or Consent Order
Compliance Order or Consent Order  

 

 

 

Legal Action

Cease and Desist Order or Consent Order
Cease and Desist Order or Consent Order  

 

Legal Action

 

Legal Action

This plan is a guide; any of the enforcement responses may be used at the City’s discretion and the City may choose to escalate an enforcement case by skipping intermediate steps. Penalties (Civil, Recovery of Damages and Costs, Etc.) may be assessed as described in the stormwater ordinance and as allowed by law at the City’s discretion.

 

  C.  Noncompliance with Post-Construction Requirements

1.  See Table 3 for the enforcement action matrix for noncompliance with post-construction requirements.

2.  The action matrix was set up to provide varying suggested degrees of response to noncompliance documented by the City.

3.  In general, the severity of the enforcement measure increases moving down the matrix.

 

Table 3. Enforcement Action Matrix for Noncompliance with Post-Construction Requirements

 

 

 

 

 

Type of Violation

 

First Failure to Comply with Post-Construction Requirements

 

 

 

Repeat Violation by a Party (Same Site)

Repeat Violation by a Party (Different Site than initial Noncompliance Site)
 

 

 

 

 

Enforcement Measures For Use (Increasing Severity Moving Down the Chart)

 

Verbal and/or Written Warning

NOV and Verbal and/or Written Warning  

NOV and Verbal Warning and/or Written Warning

Compliance Order or Consent Order
 

NOV

Cease and Desist Order or Consent Order Compliance Order or Consent Order
Compliance Order or Consent Order  

 

 

Legal Action

Cease and Desist Order or Consent Order
Cease and Desist Order or Consent Order  

 

Legal Action

 

Legal Action

This plan is a guide; any of the enforcement responses may be used at the City’s discretion and the City may choose to escalate an enforcement case by skipping intermediate steps. Penalties (Civil, Recovery of Damages and Costs, Etc.) may be assessed as described in the stormwater ordinance and as allowed by law at the City’s discretion.