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HomeMy WebLinkAboutEnforcement Response Plan (ERP) 2023 2024 City of San Luis Obispo Stormwater Program Enforcement Response Plan Purpose The purpose of the Enforcement Response Plan (ERP) is to provide guidance to City of San Luis Obispo (City) Staff when enforcing San Luis Obispo Municipal Code Chapter 12.08 – Urban Storm Water Quality Management and Discharge Control (Ordinance). This document should be used only as a guide while recognizing that each violation is unique. The provisions of this ERP are not mandatory. Actual enforcement procedures should abide by Ordinance requirements while considering any unusual aspects of a violation or condition, as well as special characteristics of an enforcement action, in determining the proper response. While the purpose is to provide guidance for administration of the Ordinance, it is not intended to limit the judgment and flexibility of the Utilities Director, Public Works Director, or Community Development (Director) in determining an appropriate response. This ERP contains the type of enforcement actions, the City ’s responses to violations, and a description of how the City will address continuing violations and the escalated enforcement action process to achieve compliance. This ERP was prepared in accordance to the State Water Resources Control Board’s (SWRCB) Statewide General Permit CAS000004 Waste Discharge Requirements for Storm Water Discharges from Small Municipal Separate Storm Sewer Systems (MS4 s), Order No. 2013-0001-DWQ “Phase II Municipal General Permit” to fulfill the implementation requirements within Section E.6.c Enforcement Measures and Tracking, E.9.d Illicit Discharge Detection and Elimination, Source Investigations and Corrective Actions and E.9.e Spill Response Plan, E.10.c Construction Site Inspection and Enforcement, E.12.h Operation and Maintenance of Post -Construction Storm Water Management Measures and E.12.i Post-Construction Best Management Practice Condition Assessment. I. Administration §12.08.050 The director shall administer, implement, and enforce the provisions of the Ordinance. The following table shows the department and section responsible for enforcing each section of the Ordinance. Utilities Community Development Stormwater Manager Code Enforcement 12.08.090 12.08.100 12.08.110 12.08.120 12.08.130 12.08.140 (Industrial Activities) 12.08.180 12.08.190 12.08.200 12.08.210 12.08.220 12.08.140 (Construction Activities) 12.08.150 12.08.160 12.08.170 12.08.220 If the City finds that a person has violated a prohibition or failed to meet a requirement of the Ordinance, the Director may order compliance by written notice of violation to the responsible person in accordance with 12.08.230 . Violations of the Ordinance may be remedied using the procedures set forth in the Ordinance. These provisions shall be in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violations of this title. II. City Inspections §12.08.220 The City will conduct inspections of permitted or unpermitted sites, activities or projects to assess compliance with the Ordinance. Whenever necessary to make an inspection to enforce any provision of the Ordinance, or whenever the Director has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this chapter, the Director may enter such premises at all reasonable times to inspect the same and to inspect and copy records related to stormwater compliance. In the event the property owner of record or occupant refuses entry after a request to enter and inspect has been made, t he City is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry. 1 MS4 – Municipal Separate Storm Sewer System. “A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains which are owned or operated by the city a nd designed or used for collecting or conveying storm water. III. Escalating Enforcement Actions §12.08.230 – 290 It is the discretion of the Director to determine which level of enforcement is most appropriate for the situation based on the severity of the issue, urgency of abatement, any prior enforcement history, and other factors (Refer to Attachment 1 for the Enforcement Response Plan Process Flowchart). As set forth in the Ordinance, and in keeping with the enforcement processes identified in the Ordinance in use by the Director, the following are the types of actions that may be implemented and their use. This list is intended to identify the type of enforcement responses based on the type of violation and should not be considered all inclusive. A. Verbal Warning Note: Verbal warnings (telephone call, informal “in -person” meeting or during an inspection) must be documented within inspection reports/field notes. Verbal warnings are most effective for first time, minor offenses with threatened discharge but no immediate harm to life, property and/or the environment, and typically in conjunction with technical assistance/education that will remedy the offense. A minor violation of the Ordinance may be resolved through a verbal warning to advise the property owner of record, operator and/or responsible party of the nature of the violation to the Ordinance and the required corrective action to obtain the desired compliance to be completed as soon as possible, same-day or within 24 hours in most cases, and/or no later than the agreed upon schedule compliance date. In lieu of the City’s follow -up inspection, the property owner of record, operator and/or responsible party can submit electronically written and photographic evidence demonstrating actions to the City inspectors no later than the scheduled compliance date either determined at the time of inspection or through an approved written request of extension submitted by the owner of record, operator and/or responsible party. Examples of violations when a Verbal Warning may be utilized: • Construction site BMPs installed incorrectly, show signs of an imminent failure, or pollutants have potential to enter MS41. • Pressure washing that has not reached the MS4 yet. • Trash or outdoor storage of materials in which pollutants have yet to enter MS4 , but when it rains, would cause pollution. B. Notice of Violation/Notice to Correct §12.08.230, 250, 260 Note: The notice of violation (NOV) or notice to correct (NTC) must be sent via electronic transmission, US mail, or hand deliver the written notice in-person to the property owner of record, operator and/or responsible party during or after the inspection. A NOV/NTC is an official notification to advise the property owner of record, operator, or responsible party of the nature of the violation to the Ordinance and the required corrective/abatement actions to obtain desired compliance including the date of the City’s follow-up inspection and/or no later than the agreed upon schedule compliance date as well as notice of potential escalated enforcement measures for non-compliance. In lieu of the City’s follow-up inspection, the property owner of record, operator and/or responsible party can submit electronically written and photographic evidence demonstrating corrective actions to the City inspectors no later than the agreed upon scheduled compliance date either determined at the time of inspection or through an approved written request of extension submitted by the owner of record, operator and/or responsible party. Effectively used in all cases and typically prior to the issuance of any escalated enforcement measure. Examples of violations when a NOV/NTC may be utilized: • Construction site has BMPs that are insufficient or failing and pollutants have entered the MS4. • Pressure washing that has entered the MS4. • Trash or outdoor storage of materials has led pollutants entering the MS4. • Failure to submit PCRs Annual Self-Inspection on-time C. Administrative Citations (Fines) §12.08.230(A)(6) §12.08.280(B) Note: The amounts of the fines for code violations imposed pursuant to SLOMC Title 1 – General Provisions shall be set forth in the schedule of fines established by resolution of the City Council. Prior to issuing an administrative citation the Director shall give notice of the violation, and if the violation may be corrected, shall grant a reasonable time, at the discretion of the Director, within which to correct the violation. No more than one notice and opportunity to correct need be given to a responsible party for a reoccurring violation. If an administrative citation is issued in accordance with SLOMC Title 1 – General Provisions the fines will be assessed per violation as follows: 1. A fine not exceeding one hundred dollars ($100.00) per day for a first violation. 2. A fine not exceeding two hundred dollars ($200.00) per day for a second violation of the same code provision or permit within one year from the date of the first violation. 3. A fine not exceeding five hundred dollars ($500.00) per day for each additional violation of the same code provision or permit within one year from the date of the first violation. Any person who fails to pay to the city an administrative citation fine on or before the date the fine is due shall be liable for interest accrued at a rate of eight percent per month until paid. [§1.24.070(C)] Payment of a fine shall not excuse or discharge any continuation or repeated occurrence of the violation that is the subject of the administration citation. Fines may be assessed per violation, per day and are very effective for immediate punitive purposes for on-view violations, or cases where at least one notice of violation was issued . D. Stop Work Orders §12.08.150(E) §12.08.160(B) §12.08.260(B) The Stop Work Order (SWO) is a notice posted by the City on a construction site which informs the property owner or operator and/or responsible party that a work performance violation has been issued in accordance with SLOMC Title 12 Streets, Sidewalks and Public Places, Chapter 12.04 Street Construction and Excavation and/or revocation or suspension of any permit granted under this title . Such stop order shall be in writing and shall be effective immediately upon personal delivery to the person in charge of the work at the construction site. Upon such delivery of such stop order, all further work shall be immediately stopped, other than such work as is immediately necessary for the preservation of life, property, or the environment, and shall not be recommenced until written permission therefor is granted by the Director. In accordance with SLOMC, any person who shall continue any work after having been served with a SWO, except such work as that person is directed to perform to remove a violation or unsafe condition, shall be subject to the penalties and code enforcement procedures set forth in SLOMC Title 1 – General Provisions. E. Withholding of Plan Approvals or Other Authorizations §1.24.050(E) If the City finds a facility non-compliant with any enforcement action or the Ordinance, the City may withhold any current or future development plan approvals permits related to the subject property should the violator not complete corrective efforts to the satisfaction of the City, which may include, but is not limited to: cleanup, abatement of discharge, and installation/ maintenance of appropriate best management practices (BMPs). It is unlawful for any person to violate any provision of, or to fail to comply with, any requirements of the SLOMC. Any person violating the provisions or failing to comply with any of the mandatory requirements of the SLOMC shall be guilty of an infraction or misdemeanor as specified in the SLOMC. F. Public Nuisance §12.08.120(B-C) §12.08.280(A) If the City determines that any condition caused or permitted to exist in violation of any of the provisions of the Ordinance is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored by the City at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken by the City. The Director may require the permittee to take reasonable measures to abate such nuisance and may revoke or suspend the permit until such measures are taken. Examples of incidents when a public nuisance: • Sidewalk cross drainage §12.08.120(B) • Drainage to public facilities or drainage to the street which creates a slick surface as a result of organic growth §12.08.120(C) G. Property Lien §12.08.270(C) If the city has incurred costs to abate a violation and the costs are not paid in full within ten days, the costs shall become a special assessment against the property and shall constitute a lien on the property. The information shall be provided to the county auditor so that the auditor may enter the amount of the assessment against the pro perty, as it appears on the current assessment roll, and the tax collector include the amount of the assessment on the bill for taxes levied against the property. The lien shall remain in effect until full payment for outstanding principal, penalties, and cost related to the l ien are paid in full. Examples of incidents when a property lien may be exercised: • Failure to pay costs of abatement H. Misdemeanors §12.08.280(B) and §1.12 It is unlawful for any person to violate any provision of, or to fail to comply with, any requirements of the Ordinance . Any person violating the provisions or failing to comply with any of the mandatory requirements of the Ordinance shall be guilty of a misdemeanor. All violations may be prosecuted by city authorities in the name of the people of the state, or redressed by civil action. IV. Continued Violations §1.24.050(D) It shall constitute a new and separate offense for each and every day during any portion of which a violation of, or failure to comply with, any provision or requirement of the SLOMC is committed, continued, or permitted by any person, and shall be punished accordingly. The City may also refer the ongoing violation to the Central Coast Regional Water Quality Control Board (CCRWQCB) within 30 days of making that determination or file a complaint on the SWRCB’s website: http://www.dtsc.ca.gov/database/CalEPA_Complaint /index.cfm . A. Recidivism Reduction Chronic violators shall be identified and the frequency of inspections at the operator’s sites shall be increased to prevent chronic violations. B. Business Licenses and Working in the Right-of-Way §12.08.280(B) Continued violation of, or failure to comply with, any of the requirements of the Ordinance may subject violators to revocation of their business license, and/or for persons seeking to work in the right-of-way or a prohibition from working within the right-of-way for a period of two years. C. NPDES Permit Referrals – Non-filers or Ongoing/Continued Violations 1. Construction Activity If the City determines that an construction activity is subject to the Construction General Permit (CGP) and the property owner of record or operator and/or responsible party cannot demonstrate permit coverage under the CGP or has an ongoing stormwater discharge violation with their CGP and if the City has made a good-faith effort of progressive enforcement to achieve compliance with the City’s Ordinance that includes at minimum the documentation of two follow -up inspections and two warning letters or notices of violation, the City shall refer the CGP non-filer to the Central Coast Regional Water Quality Control Board (CCRWQCB) within 30 days of making that determinatio n, or file a complaint on the SWRCB’s website: http://www.dtsc.ca.gov/database/CalEPA_Complaint /index.cfm. When referring a construction activity non-filer to the CCRWQCB, the City must include at a minimum the following documentation: 1. Construction project location; 2. Name of owner or operator; 3. Estimated construction project size; and 4. Records of communication with the owner or operator regarding filing \ requirements or violation including the last two follow-up inspections, two notices of violation or administrative citations, and any response from the owner or operator. 2. Industrial Activity If the City determines that an industrial activity is subject to the Industrial General Permit (IGP) and the property owner of record or operator cannot demonstrate permit coverage under the IGP or has an ongoing stormwater discharge violation with their IGP and if the City has made a good faith effort of progressive enforcement to achieve compliance with the City’s Ordinance that includes at minimum the documentation of two follow-up inspections and two waring letters or notices of violations, the City shall refer the IGP non-filer to the CCRWQCB within 30 days of making that determination, or file a complaint on the SWRCB’s website: http://www.dtsc.ca.gov/database/CalEPA_Complaint /index.cfm . When referring an industrial activity non-filer to the CCRWQCB, the City must include at a minimum the following documentation: 1. Industrial facility location; 2. Name of owner or operator; 3. Type of Industrial activity (including the Standard Industrial or the North American Industry Classification, if known ); 4. Records of communication with the owner or operator regarding filing requirements or violation including the last two follow -up inspections, two warning letters or notices of violation, and any response from the owner or operator V. Civil Action In cases where any person violates any provision of the Ordinance or fails to comply with any of the requirements of the Ordinance may be summarily abated or restored by the city at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of activity giving rise to the violation. Any property owner or operator and/or responsible party who violates the Ordinance may also be in violation of the Clean Water Act and/or the Porter -Cologne Act and may be subject to the sanctions of those acts including civil and criminal penalties. Any enforcement action authorized under the Ordinance shall also include written notice to the violator of such potential liability. VI. Enforcement Tracking The City will document and track all enforcement actions within an electronic database . The enforcement tracking will include, at a minimum the following: 1. Name of property owner/operator; 2. Location of construction project, industrial facility, or where the violation occurred ; 3. Description of violation; 4. Required schedule for returning to compliance; 5. Description of enforcement response used, including escalated response if repeat violations occur or violations are not resolved within the time specified in the enforcement action; 6. Accompanying documentation of enforcement response (e.g., notices of non - compliance, notices of violation, etc.); and 7. Any referrals to different departments or agencies. Attachment 1 Enforcement Response Plan Process Flowchart