D6 - Water Quality Enforcement Guidelines-April 2022

Guidelines for Enforcement of the
Stormwater Management and Pollution
Control Ordinance
Reviewed by:
CITY OF
DURHAM
City of Durham — Department of Public Works
Stormwater & GIS Services Division
Water Quality Unit
Date:
Michelle Woolfolk, Water Quality Manager
City of Durham Storm water & GIS Services [phone]
www. durhamnc. goy/storm water
Design/Plan Review ( Drainage/Flooding Concerns ( Floodplain Information
Stormwater Public Education / Surface Water Quality ( Stormwater Billing ( GIS Mapping

Table of Contents
Introduction.....................................................................................................................2
Overview of the Water Quality Enforcement Process ..................................................... 3
OfficialNotices................................................................................................................ 4
NOR/NOV Contents..................................................................................................... 5
Proper Service of Official Notices................................................................................ 5
Extension of Deadlines................................................................................................ 6
Violator's Right to Submit Evidence or Request a Meeting .......................................... 7
Enforcement Action Remedies........................................................................................ 8
CivilPenalties.............................................................................................................. 8
BasePenalty Amounts............................................................................................. 9
Criteria for Assessing Civil Penalties......................................................................
10
Calculation of Final Penalty Amount......................................................................
17
Notification to Department of Finance General Billing ............................................
18
Administrative Remedies...........................................................................................
18
ConsentOrders......................................................................................................
18
AdministrativeOrders.............................................................................................
18
Mandatory Security for Compliance.......................................................................
19
Termination of City Utility Service..........................................................................
19
Costs Added to Utility Bill.......................................................................................
19
Terminationof Access............................................................................................
20
Withholdingof ... approvals .....................................................................................
20
JudicialActions..........................................................................................................21
Injunction................................................................................................................
21
Abatement..............................................................................................................
22
Criminal Prosecution and Penalties.......................................................................
22
Collection of Civil Penalties....................................................................................
22
Emergencies.................................................................................................................
23
1

Introduction
This guidance document outlines the procedures that Water Quality Unit Staff follow
when engaging in enforcement of Article V of Durham City Code of Ordinances:
Stormwater Management and Pollution Control, §§ 70-492 through 70-542. Specifically,
this document addresses Division 5 of this ordinance: Administration and Enforcement.
This guidance is accepted under the authority granted by § 70-538, which empowers
the Director (the Director of the Department of Public Works, as defined in § 70-493)
and their designee(s) with the "...authority to issue guidelines to implement this
article..."
Though this guidance document discusses each section of Division 5, it is assumed that
the reader has reviewed and possesses a familiarity with the contents of the Stormwater
Management and Pollution Control Ordinance ("SMPCO"). For reference, an up-to-date
version of the SMPCO is available for internet view at the following web address:
https://Iibrary.municode.com/nc/durham/codes/code of ordinances?nodeld=PTIICOOR
CH70UT ARTVSTMAPOCO
2

Overview of the Water Quality Enforcement Process
Stormwater & GIS Services Water Quality Unit staff members engage in the code
enforcement process upon collection of sufficient evidence to link a SMPCO violation to
a responsible party. Investigative and inspection procedures leading to evidence
collection and recordation are outlined in the following two documents, and as such are
outside the scope of this document:
1) Water Quality IDDE Investigations Guidelines
2) Water Quality Stormwater Inspection Program Guidelines
Figure 1 below presents a flowchart overview of the standard enforcement process,
which will then be described in greater detail.
Informal
Requirement
compliance?
Evidence of violati�l
Choice of
No further action
Notice of Penalty
Assessment
Notice of Violation
Compliance?
Recalculate civil
penalty
Nc further action
Recalculate civil
penalty
Notice of Penalty
Assessment
' Pursue
Compliance? No alternative
remedy
Yes
No further action
Figure 1. Flowchart representation of the standard Water Quality code enforcement process.
3

Generally, the workflow of Water Quality code enforcement is as follows:
1) Evidence collected during an investigation or inspection supports a party's
responsibility for a violation of City Code
2) The Water Quality staff member leading the case will use their training and
experience to determine an appropriate course of enforcement engagement.
a. For minor compliance issues, a verbal or written warning or requirement
may be issued.
b. For significant, but first-time compliance issues, a Notice of Requirement
may be served.
c. For serious and/or repeat compliance issues, a Notice of Violation may be
served.
3) Once a Notice of Requirement or Notice of Violation is served, the alleged
responsible party may, within ten business days of service, submit their own
evidence in writing or personally during an enforcement meeting.
4) In any engagement where one or more compliance issues are observed, the
results of a follow-up compliance check determine the next step.
5) Where an informal warning is issued or Notice of Requirement is served:
a. Full compliance upon follow-up with an informal warning or Notice of
Requirement requires no further enforcement action.
b. Non-compliance upon follow-up typically results in escalation of
enforcement, depending on facts and circumstances.
6) Where a Notice of Violation is served:
a. Full compliance upon follow-up with a Notice of Violation may result in two
outcomes once required civil penalty criteria are evaluated:
i. The penalty amount is zero dollars, accounting for various credits
earned through compliance.
ii. The penalty amount is greater than zero dollars, accounting for
various credits earned through compliance.
b. Non-compliance upon follow-up with a Notice of Violation will typically
result in assessment of a civil penalty, once all criteria are evaluated.
7) Where civil penalty criteria are assessed at an amount greater than zero, a
Notice of Penalty Assessment is served.
8) Uncommonly, where the above process does not culminate in code compliance,
other remedies authorized by law may be pursued. These other remedies will be
discussed in detail in a later section of this document.
Official NoticeF
Though there are multiple paths the enforcement process may follow, is it generally
initiated upon issuance of a written Notice of Requirement ("NOR") or Notice of Violation
M

("NOW). The purpose of all Notices issued by the Water Quality Unit for code
enforcement is to inform the party to be served of their duties and obligations arising
from one or more violations of City Code, for which they are allegedly responsible.
NORMOV Contents
These Notices must comply with the requirements of §70-541. Those Notice contents
are as follows:
1. Location of the property where the violation(s) occurred;
2. Nature of the violation(s);
3. Description of the remedies and penalties that may be incurred if the violation(s)
is not corrected;
4. The action(s) needed to correct the violation(s) as well as deadlines for
completing the action(s);
5. How to contact a Stormwater Services staff member to discuss the violation;
6. How to request a meeting with the director to share explanatory or additional
information; and
7. The deadline for submitting evidence or requesting an enforcement meeting with
Water Quality staff.
Since all Notices are automatically generated by the Water Quality Investigations and
Inspections databases, staff need only input details and customize specific fields. All
required contents are built into those templates.
Proper Service of Official Notices
The responsible party must be properly served with an official copy of such a Notice.
These means of service are also applicable to the Notice of Penalty Assessment, and
other Notices for other remedies. The only means of service authorized by City Code
are the following:
1. U.S. Postal Service Certified mail, with return receipt requested, addressed to the
party to be served;
a. Such service is only considered effective if delivery is confirmed by the
carrier
5

2. In -person hand delivery to the party to be served;
a. Best practice for the staff member effecting service is to require signature
of the party on a duplicate original of the Notice being served
3. In -person hand delivery to a person of reasonable age and discretion at the
business or residence of the party to be served;
a. Best practice for the staff member effecting service is to require signature
of the person on a duplicate original of the Notice being served
4. Other means authorized by Rule 4 of the North Carolina Rules of Civil Procedure
(N.C.G.S 1A-1, Rule 4);
5. U.S. Postal Service First Class Mail addressed to the party to be served in
addition to posting a copy of the Notice at that party's residence and/or place of
business
a. The staff member mailing the Notice must obtain proof of mailing from the
U.S. Post Office.
b. The staff member posting the Notice must do so in a conspicuous but
discreet manner and take a photograph of the posted Notice in a way that
proves the Notice was served on the party. (For example: a photograph
capturing the Notice and the residence street number.)
The enforcement process must not proceed unless and until the party is served
the Notice according to one of the above methods.
Attention: electronic transmission of Notices, such as e-mail and tele facsimile, are not
legally recognized means of effecting service. Staff may, however, issue electronic
copies of official Notices in addition to properly served Notices.
.ALc11Z01V1i of Deadlineu
Deadlines for completion of corrective actions indicated on a Notice may generally be
extended at the discretion of the staff member leading the enforcement action. A
reasonable request for extension may be granted, provided that the responsible party
has acted in good faith.
L•.

Violator's Right to Submit Evidence or Request a Meeting
As a guarantee of due process of law, all Notices of Requirement and Violation advise
the alleged responsible party of their right to submit evidence in writing or request a
meeting with Water Quality Unit staff.
Written materials may be accepted electronically or in hard -copy form, delivered to the
staff member leading the investigation or inspection.
Meetings are commonly effective opportunities for the City and the alleged responsible
party to clarify evidence, expectations, and other details, as necessary. These meetings
are internally referred to as "Enforcement Meetings" and are coordinated and led by the
lead staff member for the investigation or inspection.
These meetings are conducted according to the following guidelines:
1. Attendees:
a. Water Quality Manager (at their discretion)
b. Water Quality IDDE Supervisor (required)
c. Water Quality Lead investigator for the enforcement action (required)
d. Alleged party responsible for the violation(s)
2. Meeting Agenda:
a. Introductions of meeting attendees and signing of attendance log
b. City's review of case and enforcement posture
c. City's presentation of relevant evidence of violations and responsibility
d. Alleged responsible party's presentation of evidence
e. Group discussion of facts, circumstances, and relevant regulations
f. Adjourn
City staff shall, at all times during Enforcement Meetings, remain professional and
courteous, and seek to resolve outstanding issues expeditiously.
Upon adjournment, the presiding staff member (Water Quality Manager or IDDE
Supervisor) will consider all facts and arguments presented. After such consideration,
the presiding staff member will render a written decision on the matter, to be issued to
the lead investigator/inspector and the alleged responsible party.
Enforcement will then proceed according to the decision made.
7

Enforcement Action Remedies
Actions found not to be in compliance with City Ordinance are considered unlawful
violations. The City is allowed to use any remedy (strategy for obtaining compliance) or
combination of remedies described in the City Ordinance or otherwise permitted by law.
Violations fitting the description of public nuisances (something dangerous or prejudicial
to the public health or public safety) may be resolved using additional remedies such as
abatement. Remedies may be used singly or in any combination and in any order.
Section 70-540 describes three types of remedies and actions that may be used in
enforcement cases:
1. Civil Penalties
2. Administrative Remedies
3. Judicial Actions
The City is not limited to using any remedy in the exclusion of others. Any
combination may be used, so long as the proper procedures are followed.
Civil Penalties
Civil penalties are authorized by City Code as remedies for SMPCO violations (§70-
540(2)(a)). Civil penalties collected by the City are fully turned over to the Durham
County Public School System, per the requirements of the NC Constitution Art. 9, Sec.
7 and NC General Statutes §115C-437.
Civil penalties are only assessed after:
1) Sufficient evidence of one or more SMPCO violations is collected;
2) Sufficient evidence is collected to identify the responsible party;
3) The responsible party is duly served with a Notice of Violation;
4) The responsible party is extended a ten business day period during which they
may submit evidence in writing or personally during an enforcement meeting;
5) All SMPCO penalty criteria are evaluated; and
6) The responsible party is duly served with a Notice of Penalty Assessment.
All Notice of Penalty Assessment letters are automatically generated within the
Investigations and Inspections databases. These documents advise the responsible
party of the total civil penalty amount for which they are liable to the City. Supporting
documents included upon service of a Notice of Penalty Assessment are:

1) Penalty Summary, which breaks down the criteria evaluations for each violation
cited, as well as the mathematics underlying the penalty amount.
2) The Notice of Violation served to the responsible party, which was a basis for the
violations, corrective actions, and proposed civil penalties for the case.
The lead investigator must produce a file including the Notice of Penalty Assessment,
relevant Notice of Violation, and Penalty Summary for review by the Water Quality IDDE
Supervisor. Upon approval, the packet is then submitted to the Assistant Director of
Stormwater & GIS Services for final review and signature. The Public Works Director
and Assistant Director of Stormwater & GIS Services are the only individuals authorized
to sign a Notice of Penalty Assessment.
3ase Penalty AmountE
Each type of violation citable under the SMPCO has been assigned a Base Penalty
amount, ranging from $50 to $275. These assigned amounts were set by a committee
of Water Quality Unit staff shortly after the 2006 adoption of the SMPCO and after
multiple discussions, scenario evaluations, and test calculations. Base Penalty amounts
are directly proportional to the severity of the violation. Table 1 below organizes all
citable violations with their respective base penalties.
Table 1. Base civil penalty amounts set for each citable violation of the SMPCO.
MPCO Violation
Base Penalty
e.,,.,��.It
Permits & Plans: Stormwater Pollution Prevention Plan not up to date. [§ 70-514(a)]
$50.00
Permits & Plans: Stormwater Pollution Prevention Plan is incomplete. [§ 70-514(a)]
$50.00
Spill Response: Failure to report a spill to Durham City -County EMS within one working
$50.00
day. [§ 70-511(b) and § 70-518(b)]
Spill Response: Spill cleanup kit(s) missing and/or inadequately stocked. [§ 70-515(a)]
$50.00
Training: Failure to conduct Stormwater Pollution Prevention Training. [§ 70-
$100.00
511(c)(1)(a)]
BMPs: Failure to implement proper Best Management Practices to prevent stormwater
_
$100.00
pollution. [§70-511(c)(1)]
Permits & Plans: Failure to complete Tier 1/2 Responses, as directed by your NPDES
$100.00
Stormwater Permit. [§ 70-514]
Permits & Plans: Failure to conduct self -inspections as directed by your facility's NPDES
$125.00
permit or by the City of Durham. [§ 70-514(a)]
Huwrnuuve: Huwrnuuve service ur rnainLenance uemg cunaucLea uuLsiae snap uays. [g fi1')S nn
Permits & Plans: Failure to conduct analytical and/or visual stormwater runoff
monitoring, as directed by your facility's NPDES permit or by the City of Durham. [§ 70- $150.00
514(a)] _
Illicit Discharge: Failure to contain the discharge of a solid, liquid, or gas, other than $175.00
stormwater either directly or indirectly to the drainage system. [§ 70-511(a) & (b)]
9

SMPCO Violation
Base Penalty
Automotive: Failure to contain and capture vehicle wash water. [§ 70-511(a) & (b)]
$175.00
Illicit Connection: Existence of a pipe, ditch, or other conveyance that carries process
wastewater or wash water to the municipal separate storm sewer system or
$175.00
watercourses. [§ 70-5121
Permits & Plans: No Stormwater Pollution Prevention Plan developed. [§ 70-511 (c)(1),
_
$200.00
§ 70-514, § 70-516]
Permits & Plans: Stormwater Pollution Prevention Plan not readily available for
$200.00
inspection. [§ 70-514(a)]
ermits & Plans: NPDES Permit Certificate of Coverage not readily available for
FIr
$200.00
spection. [§70-514(a)]
Illicit Discharge Prevention: Storage of materials on property in such a manner that may
$200.00
cause a significant illicit discharge. [§ 70-511(c)(1)]
Tanks Management: Secondary containment and/or cover not in place where
$200.00
necessary. [§ 70-515(a) and/or § 70-517]
Permits & Plans: Failure to apply for and/or obtain a NPDES stormwater permit or No
$200.00
Exposure exemption. [§ 70-514(a)]
Automotive: Parts stored outside without containment and/or cover. [§ 70-515(b)(4)]
$200.00
Automotive: Fluids stored outside without containment and/or cover. [§ 70-515(a)]
$200.00
Spill Response: Improper/incomplete cleanup of spilled materials. [§ 70-518(a)]
$275.00
Criteria for Assessing Civil PenaltieE
Ten criteria, dictated by §70-540(2)(d), must be used to further modify a Base Penalty
proposed and finally assessed for a violation. These criteria have various multiplicative,
additive, or subtractive effects on the Base Penalty, depending on their mitigating or
aggravating nature. After all criteria have been judged, a mathematical formula
determines the Total Penalty.
As a matter of fairness and consistency, these criteria must always be judged
objectively against the facts of each separate case. In all cases, the staff member
assessing a civil penalty must judge each criterion to the maximum extent supportable
by evidence. If unsure of any particular criterion assessment, investigators should
present and discuss their thoughts with a more experienced team member or with the
IDDE supervisor.
A) §70-540(2)(d)(1). The degree and extent of harm to the environment, the public
health, and private property
This criterion is evaluated by determining if the harm caused by the violation had a
"Low," "Medium," or "High" adverse impact on the environment, property, or both. A
"Low" evaluation is a multiplier of 1 on the Base Penalty and will not affect the Total
Penalty. A "Medium" evaluation is a multiplier of 1.5. A "High" evaluation is a
multiplier of 2.
10

Because the impact of a violation is highly variable from case to case, there are no
absolute measures for evaluating this criterion. Instead, the investigator should use
experience and training in conjunction with the facts of each case in judging how to
evaluate this criterion. The below examples may be useful as guideposts.
As an example of a high degree or extent of harm, the violation must have caused
such effects as a fish kill or similar mass death of wildlife, severe risk to public health
(such as a major sewage or hazardous material spill), significant damage to property
(such as a petroleum spill affecting a wide, deep swath of ground), or any such
combination.
On the opposite side of the scale is low or no impact, where the violation has
minimal to no measureable or observable harmful impact on the environment or
public health and causes no lasting or costly property damage.
B) §70-540(2)(d)(2). The duration and gravity of the violation
The duration of a violation is simply the number of calendar days during which a
violation has continuously occurred or remained uncorrected. The Base Penalty is
multiplied by this duration during the Total Penalty calculation.
The day count begins on the day that the investigator first collects evidence of the
violation. The day count ends on the day that the investigator first collects evidence
that the violation has ceased or been corrected. In some cases, where the
responsible party was not aware of and had no reason to be aware of the violation,
the day count may begin on the day the responsible party is notified of the violation.
C) §70-540(2)(d)(3). The effect on grouna or surface water quality or on air quality
or on flood hazard
The investigator must determine whether the violation has actually caused an
exceedance of North Carolina surface water quality standards. Accordingly, this
criterion requires that a discharge has reached surface waters. The evidence
required may be in -stream measurements, grab samples, laboratory analysis, or
some combination thereof, compared to the standards defined by 15A North
Carolina Administrative Code Chapter 02 Subchapter B.
It must be more likely than not that the in -stream conditions were actually caused by
the responsible party's violation. The investigator must take care to collect sufficient
evidence to establish this link. If this is true, then a "Yes" response is appropriate
and is a multiplier of 2 on the Base Penalty. Otherwise, a "No" response is a
multiplier of 1.
11

D) §70-540(2)(d)(4). The cost of rectifying the damage
The investigator must factor the responsible party's compliance costs into the
penalty calculation. This includes the costs incurred from initial response through
final correction and remediation. A "credit" of 75% of these costs is subtracted by the
penalty calculator when determining the Total Penalty. (The investigator should
enter the entire cost amount into the penalty calculator field. The calculator
automatically calculates the 75% credit amount.)
As a general rule, the costs (wages) of responsible party employee time are not
factored into the calculation, as these costs include taxes, government fees, and
benefits. The City will not consider those factors. However, should a responsible
party hire a third party to complete corrective actions, the costs of third party staff
included in a bill for services shall be included.
Only the costs incurred specifically to address a violation may be considered. Also,
should a party be responsible for multiple violations, the investigator must match
costs with their respective violations.
Example 1:
• Party is responsible for illicit connection and illicit discharge violations.
• Party pays $100 to a plumber to remove the illicit connection and $200 to a
contractor to clean up the illicit discharge.
• Investigator will consider the $100 plumber payment toward the illicit
connection penalty, as that money directly corrected the violation.
• Investigator will consider the $200 contractor payment toward the illicit
discharge penalty, as that money was spent to remediate the impact of the
discharge.
Example 2:
Party is responsible for an illicit discharge violation
Party incurs the following costs:
o $60 in wages to Party employee for overtime
o $100 for a wet -dry vacuum used to clean up discharge
o $20 for granular absorbent used to clean up discharge
o $200 for disposal of waste from discharge cleanup
o $45 for absorbent booms to prevent future discharge
o $500 for installation of a general site security system
Party will receive credit for all but the $60 in wages and the $500 for a
security system. Wages are generally not factored into the penalty calculation
(see above). The security system is not considered because it was 1) not
installed specifically in response to this violation and 2) not specifically
designed to prevent future similar violations.
12

In all cases, the responsible party must submit authentic itemized receipts (or
invoices marked as paid) as evidence that costs were incurred and paid. Costs
claimed but not supported by sufficient evidence will not be considered.
E) §70-540(2)(d)(5). The amount of money saved by noncompliance
The investigator must determine: would the violation have occurred had the
responsible party incurred the costs of complying with City Code? If the answer is
"no," then the investigator must determine those compliance costs that should have
been incurred. This amount is added by the penalty calculator when determining the
Total Penalty.
To determine the amount saved by noncompliance, the investigator must answer the
following:
What does City Code prohibit or require of the responsible party?
a. Prohibitions are statements like §70-511(a), where it is explicitly
against the law to put non-stormwater substances and materials into
the drainage system.
b. A requirement is a compelled action, such as the requirement to install
secondary containment and cover in §70-515(a) or the requirement to
take appropriate and timely action to contain a discharge or spill in
§70-511(b).
c. This can also include a cost necessary to meet a previously mandated
Best Management Practice requirement under §70-511(c).
d. If there is no prohibition or requirement, then there is no avoided cost.
If there is no avoided cost, then no amount is considered for this
criterion.
2. What is the typical (or average) cost of such compliance?
a. If the responsible party's noncompliance caused the violation, then the
investigator must factor in the avoided cost of compliance for this
criterion.
b. The avoided cost may be found either 1) in the Water Quality
Guidelines for Enforcement of the Stormwater Pollution Control
Ordinance or 2) by taking the lowest of at least three cost quotes
furnished by contractors or suppliers.
Example 1:
Party automotive mechanic garage has three 55-gallon drums of waste oil
stored outdoors without secondary containment and cover
Party is cited for a violation under §70-515(a)
The cost avoided for this violation is the current market cost of a
secondary containment and cover device for three 55-gallon drums.
13

Example 2:
Party residential development company is building a single-family home
on a small lot. Party has not installed erosion and sediment control, as
directed by a Notice of Requirement issued by Water Quality. As a result,
an illicit discharge of sediment has occurred.
Party is cited for a violation under §70-511(a).
The cost avoided for this violation could be (depending on the
circumstances) the cost of silt fence installation around the site (labor and
materials, quoted from local contractors).
Example 3:
• Party automotive mechanic garage has a 55-gallon drum of waste oil for
disposal.
• Party does not wish to pay for proper disposal, so the drum's contents are
emptied into the stormwater drainage system.
• Party is cited for a violation under §70-515(a).
• The cost avoided for this violation is the average cost of proper disposal of
a 55-gallon drum of waste oil.
F) §70-540(2)(d)(6). Knowledge of the requirements by the violator, and/or
reasonable opportunity to obtain such knowledge
The investigator must determine whether the responsible party knew or should have
known of the relevant requirements or prohibitions of City Code. If true, then this
criterion is evaluated as "Yes," which carries a multiplier of 2. If not, it is evaluated as
"No" and carries a multiplier of 1.
The most solid grounds to support that the responsible party actually knew is
through a record of communication by a Water Quality staff member. This can be
through official Notices, communications (phone, in -person, email), or similar
contact. Investigators must take care to log details of relevant communications in the
applicable Database as evidence. Such records, if well detailed, may be used even
in the event of a repeat violation long after an investigation is closed.
If a responsible party is a corporate entity, then the corporation is charged with
having knowledge if any of its agents (managers, supervisors, etc.) have knowledge.
Investigators should keep this in mind, as agents are the individuals most commonly
encountered during investigations.
14

In nearly all cases, if a responsible party commits a repeat violation (meaning that
Water Quality has previously issued a Notice of Violation to this party for this type of
violation), the party is deemed to have actual knowledge of the requirements. This
also applies to parties that commit the same violation at different locations or at
different projects (such as general contractors).
A "reasonable opportunity to obtain such knowledge" will depend on the
circumstances, and the investigator must determine if there is sufficient evidence to
support this. There is no single best definition for this, but generally includes
circumstances where the SMPCO or Water Quality Unit guidance or educational
materials were furnished to the responsible party prior to the violation occurring. In
other words, the party was not informed directly, but was shown a way or given the
opportunity to become informed.
G) §70-540(2)(d)(7). Whether the violation was willfu,
To determine whether a violation was willful, the investigator must have sufficient
evidence to support that the responsible party:
knowingly failed to comply with City Code or purposefully disregarded City
Code; or
acted with indifference toward the consequences of the violation.
The investigator should remember that violations might occur through voluntary
action or inaction.
This criterion is evaluated with a "Yes" or "No" response. A "Yes" response carries a
multiplier of 2. A "No" response carries a multiplier of 1.
Example:
• Party is a real estate developer building a single-family home on a small
parcel of land.
• During land disturbing activities, no sediment and erosion controls are
installed on the site.
• Because no controls are installed, stormwater runoff carries sediment from
the site, unimpeded, into the stormwater drainage system. This is an illicit
discharge.
• In this example, the responsible party is in the business of building homes.
Therefore, we assume the party knows that sediment can and will be carried
off the site by stormwater runoff unless prevented by common industry
management practices.
• The party's failure to take precautions demonstrates indifference to prevent
the consequences (stormwater contamination, sediment in the drainage
15

system, possible surface water pollution) of the violation (an illicit discharge of
sediment).
H) §70-540(2)(d)(8). Actions taken by the violator to prevent or remediate the
impacts
The investigator must determine whether the responsible party has completed the
corrective actions defined in an Official Notice by the deadlines set in the Notice. If
true, then this criterion is evaluated as "Yes," which carries a multiplier of 0.75. If not,
it is evaluated as "No" and carries a multiplier of 1. In this way, a "Yes" response will
reduce the Total Penalty amount by 25%.
With regard to completing required preventative measures, the investigator should
assess whether, under the circumstances, the measures put in place are reasonably
calculated to prevent or reduce contamination of stormwater runoff and surface
waters.
1) §70-540(2)(d)(9). Whether the violation is a repeat violation
To be deemed a repeat violation, this specific responsible party must have been
cited in a Notice of Violation issued by Water Quality for this specific violation in the
past. The circumstances need not be identical — only the violation cited.
City Code directs that this criterion's effect on the Base Penalty is limited, depending
on the use of the property at which the violation is committed:
• Non-residential use properties: 25% is added to the Base Penalty (a 1.25x
multiplier)
o Penalties for first-time violators are capped at $2,000 per violation,
unless the violator is subject to an industrial NPDES stormwater permit
• Residential use properties: the Penalty may be doubled (a 2x multiplier)
The investigator must evaluate both the property use and whether this is a repeat
violation. Property use, for the purposes of Water Quality enforcement, is the actual
use of the property at the time the violation occurred. The use for which the property
is zoned is irrelevant in this context.
J) §70-540(2)(d)(10). The costs of enforcement to the City
In the event that a responsible party is unwilling, unable, or unavailable to conduct
corrective actions or remediation in response to violation of the SMPCO, the City
may (according to discretion and ability) conduct such necessary action at its initial
expense. Should the City provide materials (such as spill cleanup supplies, booms,
other equipment) or services (such as use of a street sweeper, disposal costs,
employee time) in the furtherance of correcting the violation, remediating its effects,
16

or both, those costs may be recovered from the responsible party or parties. This
also includes the costs incurred by the City if it hires a third party contractor to
provide materials, services, or both.
A Water Quality staff member must propose such intervention to the IDDE
Supervisor for preliminary review. If appropriate, the IDDE Supervisor will propose
facts and circumstances necessitating City intervention to the Water Quality
Manager and Assistant Director of Public Works (Stormwater & GIS Services) for
review. Factors considered include the severity of environmental, property, and
public health risk or harm, weighed against potential harm due to inaction or delayed
action.
Initial approval allows staff to inquire with at least three vetted, third party, licensed
contractors to prepare cost estimates for completing a specific scope of work. Upon
receipt of such estimates, costs are reviewed. Unless an "on -call" response contract
is in place, the use of third party services may only be authorized by the City
Manager or Public Works Director. Per City Policy FP-111, the Director of Public
Works may authorize service contract expenditures up to the amount of $10,000.
Expenditures in excess of $10,000 require approval of the City Manager.
To support recovery of City costs, the investigator must obtain itemized accountings
of all materials and services provided by the City, its hired contractor, or both.
Estimates of City costs are not permissible as evidence of actual City costs.
City costs are receivable as reimbursements to the City and must be treated as
separate from civil penalty amounts. The standard Notice of Penalty accommodates
this distinction as separate line items.
Authorization for adding costs to a party's utility bill is granted by §70-540(1)(f). See
also "Costs Added to Utility Bill" on page 19 of this document.
Calculation of Final Penalty Amount
A civil penalty calculator is built into both the Investigations and Inspections Databases.
The staff member need only choose the appropriate evaluation value for each
corresponding penalty assessment criterion. Once all fields are evaluated, a
mathematical formula determines the Total Penalty. That formula is (where the letters
correspond to the above criteria list):
Total Penalty = Base Penalty x A x B x C x F x G x H x 1— (0.75 x D) + E
As a separate amount due, a City reimbursement is simply:
Total City Reimbursement = J
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Notification to Department of Finance General Billing
Once proper service of the Notice of Penalty is effected, the staff member leading the
case must submit an electronic (PDF) copy of the Notice of Penalty to the City's
General Billing office via email (General Billing(a durhamnc.gov). At the end of each
calendar month, General Billing staff will create invoices for each penalty and submit a
summary proof for review by Water Quality staff to approve. Civil penalties and City
reimbursements will be created as separate line items, as they are payable to separate
City accounts. Any corrections must be submitted by the date directed by General
Billing (typically during the first week of the following calendar month). Upon approval,
penalty invoices are billed to respective responsible parties and are payable within 30
calendar days.
Monies received by Billing from the responsible party are dispersed into separate
accounts for penalties and reimbursements, as appropriate. Unpaid bills are handled by
the City Finance Department according to their procedures.
Administrative Remedies
As authorized by §70-541(1)(a-h), administrative remedies may be considered in the
event that the enforcement process, including the remedy of civil penalties, is or would
be, under case -specific circumstances, ineffective at achieving compliance with the
SMPCO. Administrative remedies may also be considered for parties responsible for
repeat and serious violations of the SMPCO. Administrative remedies must be proposed
for review by the Water Quality Manager through the Water Quality IDDE Supervisor. If
approved, supporting documentation must be prepared for review and approval by the
Director of Public Works. Written Notices of each of the below remedies must be
prepared and duly served to the responsible party.
The following administrative actions may be taken by the City:
Consent Order_
A consent order is a writing voluntarily entered into and signed by both the Director of
Public Works and the party responsible for violation of the SMPCO. The consent order
must include actions that the violator must take to correct the violation(s) within a
defined period of time. The order may additionally require the completion of a mitigation
project that the director and violator agree upon that "...improve[s] environmental quality
of the drainage system..." and that remediates the impacts of a violation.
Administrative Orders
An administrative order is a written directive issued by the Director of Public Works.
Such an order requires compliance with the Ordinance, sets specific actions to be
completed during a given time period by the violator, and describes potential

consequences for continued noncompliance. In this way, an administrative order could
be considered an "elevated" form of Notice of Requirement.
Mandatory Security for Compliance
Under this type of remedy, the Director may require the party responsible for violation of
the SMPCO to post a bond or other financial "security deposit" as a guarantee of
completion of actions required to reach compliance. The nature and value of the
security shall be specified in writing by the Director. Upon confirmation of compliance,
the security is returned to the responsible party.
Termination of Citv Utilitv Servicr
The nature of this remedy requires review and approval of the City Manager after initial
review and approval of the Director of Public Works. Generally, this type of remedy may
only be pursued if a utility service, such as water or sewer, is the cause of, or is
contributing to, a violation leading to severe property damage, public health risk,
environmental harm, or a combination thereof. Each case must be evaluated on its own
merits to determine if termination of utility service is fair and appropriate. Factors such
as property use, nature of tenancy, duration and severity of harm, and other matters of
equity must be considered and documented
This Notice must be duly served according to the procedures authorized under §70-
541(b). Copies of this Notice must be issued to the Water Quality Manager, Assistant
Director of Public Works (Stormwater & GIS Services), Director of Public Works,
Director of Water Management, and Superintendent of Water & Sewer Maintenance.
Upon service of a Notice of Termination of Utility Service, the responsible party may file
an appeal pursuant to § 70-541(e)(3).
Utility service may only be restored upon confirmation of compliance with the SMPCO
and completion of required corrective actions.
costs Added to Utility t;i.
In the event that a responsible party is unwilling, unable, or unavailable to conduct
corrective actions or remediation in response to violation of the SMPCO, the City may
(according to discretion and ability) conduct such necessary action at its initial expense,
then recover those expenses from the responsible party via invoice issued by the
Department of Finance General Billing Division. For additional detail and procedures,
please see above heading "J) §70-540(2)(d)(10). The costs of enforcement to the City"
on page 16 of this document.
Notice of such City action and cost recovery is given via the Notice of Violation and
Notice of Penalty Assessment discussed earlier in this document.
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Termination of Access
Where blocking or terminating access to the municipal stormwater drainage system
(MS4) would prevent an illicit discharge from entering the MS4 and surface waters, such
action may be authorized by the Director of Public Works.
Such action may not be conducted on private property. Rather, termination or blockage
may only be effected on City property or in the City Right -of -Way. Since such
interference with the drainage system may have flooding implications, Stormwater &
GIS Services Infrastructure and Operations Stormwater Maintenance staff must be
consulted during deliberation of this remedy and before the Director is asked to review
and approve its use.
If termination of MS4 access is approved, the responsible party must be notified of this
action. A standard template will be developed when the Water Quality Unit pursues this
type of action. Public Works Stormwater Maintenance must be notified of this approval
and prepare to execute upon it.
Access to the MS4 may only be restored upon confirmation of compliance with the
SMPCO and completion of required corrective actions.
Withholding of ... approvals
The City is authorized to withhold "building inspections, permits, certificates of
occupancy, or other permits" as a guarantee against SMPCO compliance by a
responsible party. Due to the myriad potential consequences of withholding such things,
discussion and close communication with the City agencies responsible for such is of
utmost importance. Accordingly, these withholdings are subject to the approval of their
governing agencies and may only be requested by Water Quality.
Proposal of this remedy must be first deliberated by the Water Quality IDDE Supervisor
and Water Quality Manager, then discussed with the agency responsible for the permit
or approval, before presentation to the Assistant Director of Public Works (Stormwater &
GIS Services) and the Director of Public Works.
If this remedy is approved, the responsible party must be notified of this action. The
agency responsible for the permit or approval must be issued a copy of this notice and
prepare to execute upon it.
Upon confirmation of compliance with the SMPCO and completion of required corrective
actions, Water Quality will notify the appropriate agency and request that the
withholding be removed.
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Judicial Actions
The City is authorized §70-540(3) to pursue judicial action against a violator, if
necessary. Judicial remedies are generally sought by Water Quality as an ultimate
escalation of the enforcement process upon recommendation of the IDDE Supervisor
and after approval of the Water Quality Manager. All judicial remedies must be
undertaken with the approval and direction of the City Attorney's Office. Water Quality
staff will be responsible for assembling relevant case files and evidence, assisting with
preparation of court documents, preparing sworn statements, meeting with the City
Attorney's Office, and possibly appearing in court to deliver testimony.
In all cases where judicial actions are sought, lead staff should expect to prepare a case
file for review by the City Attorney's Office. Such a case file should include:
1. An executive summary of the investigation or inspection
2. A timeline of all relevant evidence and actions taken by the City and defendant
3. Reports generated by the Investigation or Inspection database
4. Copies of all official Notices and other written correspondence with the defendant
Injunction
An injunction is a court order that compels or forbids a certain act, typically used where
the defendant (responsible party) must alter its course of action to prevent injustice and
permanent harm to the plaintiff (City). If the defendant does not comply with the terms of
the court order, they will be found in contempt of court and subject to civil or criminal
liability.
In the case of a SMPCO violation, an example injunction could require a party to
terminate an illicit connection or other practice causing an illicit discharge.
At the discretion of the City Attorney's Office, a preliminary injunction may be applied for
while a permanent injunction is prepared. The Water Quality staff member responsible
for the case must be prepared to furnish evidence in support of a two -prong test the
court will evaluate:
1) The City must be likely to succeed on the merits of its case — namely,
that injunctive relief is necessary for the protection of the City's rights
during litigation of a permanent injunction; and
2) The City is likely to sustain irreparable harm unless the injunction is
issued — i.e. that irreversible harm will be caused to the environment or
the City's rights to operate a MS4.
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The Water Quality staff member will also be responsible for collecting and recording
follow-up evidence of the defendant's compliance or noncompliance with the injunction
for possible presentation at future proceedings.
A permanent injunction will likely require additional evidence and sworn statements to
be furnished by the Water Quality staff member at the request of the City Attorney's
Office. Staff must provide complete and timely responses to these requests to avoid
unnecessary delay that could be fatal to the court proceeding.
Abatement
A court -ordered abatement requires a violator to take any action that is necessary to
bring a property into compliance with the ordinance. The violator may be required by the
court to abate a violation, such as in the event a private septic system is found to be
malfunctioning and discharging sewage to surface waters or the storm drainage system.
If the violator does not comply with the court -ordered abatement, the City may execute
the order (per N.C.G.S. § 160A-175(e)) and lien the property for the cost of abatement.
This is also applicable in cases of public nuisance.
A violator who does not comply with an order of abatement may also be subject to
citation for contempt of court and therefore subject to civil or criminal liability.
Criminal Prosecution and Penalties
Any violation of the SMPCO may be pursued as a misdemeanor offense. Generally, we
prefer use of typical Water Quality enforcement procedures to remedy violations.
Requests for Police enforcement should first be discussed with the IDDE Supervisor.
Under certain circumstances, a Water Quality staff member may immediately request
assistance or intervention from the Police Department. These circumstances may
include matters of extreme urgency and where personal or public safety is in imminent
danger.
The punishment (fines and/or imprisonment) for various classes of misdemeanors is
defined in N.C.G.S. § 15A-1340.23. Criminal procedure and proceedings are managed
by the Durham Police Department and City Attorney's Office. Water Quality staff
participation in such proceedings shall be conducted under their direction.
Collection of Civil Penalties
The City is authorized to use civil actions to collect penalties unpaid within 30 days of
the due date indicated on the penalty notice issued to the violator. In addition, State
Statute permits the City to place liens on any property within the City owned by a
violator in the amount of the City's expenditures in remediating illegal discharges. Such
actions may be pursued at the discretion and under the direction of the City Attorney's
Office.
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Emergencies
In case of emergency, where at least one of the following conditions is applicable:
• Delay threatens effective enforcement of the article; or
• Delay poses an immediate danger to the public health, safety, or welfare; or
• Delay poses an immediate danger to waters of the state,
the City Manager, Deputy City Manager, or Director of Public Works may order
immediate cessation of the violation without following provisions set in § 70-541.
Immediate enforcement may be sought by the Director using any remedy or penalty
authorized by law.
The IDDE Supervisor, Water Quality Manager, Assistant Director of Public Works
(Stormwater & GIS Services), and Director of Public Works will discuss the facts and
circumstances of the case. If emergency action is necessary, approval of counsel in the
City Attorney's Office will be sought before such action is taken.
Actions that follow shall proceed similar to those discussed in section "J) §70-
540(2)(d)(10). The costs of enforcement to the City" on page 16 of this document.
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