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HomeMy WebLinkAboutAgenda - 09-06-2012 - 5j ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 6, 2012 Action Agenda Item No. 5-j SUBJECT: Memorandum of Agreement between the NC Sedimentation Control Commission and Orange County DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No ATTACHMENT(S): INFORMATION CONTACT: Memorandum of Agreement Sahana Ayer, 245-2319 Ren Ivins, 245-2586 PURPOSE: To approve a Memorandum of Agreement between the North Carolina Sedimentation Control Commission and Orange County, North Carolina for the purpose of clarifying roles in the enforcement of the Sedimentation Pollution Control Act of 1973, N.C. General Statute Chapter 113A Article 4 and any rules adopted pursuant to the Act. BACKGROUND: Orange County is responsible for enforcing the sedimentation control standards issued by the Sedimentation Control Commission (the "Commission") and adopted a local program in 1975. The Act was amended in July 2011 and provided a model sedimentation control ordinance for adoption by the local programs. The Commission also increased the reporting requirements for local programs by requesting local jurisdictions forward Erosion Control applications to it (which Orange County has been doing effective February 2012). The Memorandum outlines and further clarifies the amended enforcement and reporting responsibilities of the County. FINANCIAL IMPACT: There is no financial impact associated with this decision. RECOMMENDATION(S): The Manager recommends that the Board approve the Memorandum of Agreement and authorize the Chair to sign the agreement. 2 MEMORANDUM OF AGREEMENT BETWEEN THE NORTH CAROLINA SEDIMENTATION CONTROL COMMISSION AND ORANGE COUNTY,NORTH CAROLINA This MEMORANDUM OF AGREEMENT is entered into between the North Carolina Sedimentation Control Commission (hereinafter, "Commission") and Orange County, North Carolina (hereinafter, "Local Government," collectively, "Parties") for the purpose of clarifying their roles in the enforcement of the Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. Ch. 113A Art. 4 and any rules adopted pursuant to the Act(hereinafter collectively, "SPCA.") Part I. Local Program Creation. A. Model Ordinance The Parties agree that the Commission shall do the following: 1. Per N.C. Gen. Stat. § 113A-54(1), provide a model erosion and sedimentation control ordinance (hereinafter, "model ordinance") for adoption by local governments who wish to operate a delegated local sedimentation and erosion program (hereinafter, "local program.") 2. Update its model ordinance upon changes in the SPCA. B. Proposed Ordinance Review The Parties agree that: 1. Local governments who choose to create and operate a local program may do so by ordinance (hereinafter, "local program ordinance") However, the local government must submit the proposed local program ordinance to the Commission staff for review prior to adoption. Local governments must adopt the ordinance prior to submission to the Commission for approval. 2. North Carolina General Statute § 113A-60(b) requires the Commission to review, approve, approve as modified, or disapprove proposed local program ordinances based upon the minimum requirements of the SPCA. 3. The Commission shall review a local program ordinance submitted and, within 90 days of receipt thereof, shall notify the local government submitting the program that it has been approved, approved with modifications, or disapproved. 4. The local program's erosion and sedimentation control standards must equal or exceed those of the SPCA. 3 Part II. Responsibilities and Expectations of the Commission. A. Local Program Review The Parties agree that the Commission shall do the following: 1. Review periodically approved local programs for compliance with the SPCA. The results of the reviews shall be presented at the next quarterly meeting of the Commission. 2. If the Commission determines that any local government is failing to administer or enforce an approved erosion and sedimentation control program, it shall notify the local government in writing and shall specify the deficiencies of administration and enforcement. 3. If the local government has not taken corrective action within 30 days of receipt of notification from the Commission, the Commission shall assume administration and enforcement of the program until such time as the local government indicates its willingness and ability to resume administration and enforcement of the program. B. Training and Education for Local Programs The Parties agree that the Commission shall provide the following: 1. Educational programs in erosion and sedimentation control directed toward persons engaged in land-disturbing activities, general educational materials on erosion and sedimentation control, and instructional materials for persons involved in the enforcement of the SPCA and erosion and sedimentation control rules, ordinances, regulations, and plans. 2. Manuals and publications to assist in the design, construction and inspection of erosion and sedimentation control measures. 3. Periodic reviews of local erosion and sedimentation control programs and through the reviews provide recommendations to improve program administration. 4. Technical assistance in review of draft erosion and sedimentation control plans for complex activities. C. Concurrent Jurisdiction The Parties agree that the Commission shall maintain concurrent jurisdiction with the local government for land-disturbing activities and may take appropriate compliance action if the Commission determines that the local government has failed to take appropriate compliance action. -2- 4 Part III. Responsibilities and Expectations of the Local Government. A. Enforcement The Parties agree that the local government shall administer its own local program ordinances, through the following: 1. Enforce the provisions of the SPCA. 2. Administer the SPCA for all land-disturbing activity within its jurisdiction, including existing sites at the time the local government received program delegation. The Commission may continue to administer the SPCA over specific projects under enforcement action upon mutual agreement with the local government. The local program is not responsible for activities over which the Commission has exclusive jurisdiction. 3. Employ a sufficient number of qualified personnel. Qualified personnel shall be competent to review sedimentation and erosion control plans and conduct inspections of land-disturbing activities. 4. Provide adequate resources for plan review and compliance inspections. B. Reporting The Parties agree that the local government shall provide the following reports/information: 1. Monthly activity report to the Commission in the form adopted by the Commission. 2. Copy of all Financial Responsibility/Ownership forms to the Division of Water Quality (DWQ) when draft erosion and sedimentation control plans are received. 3. Copy of Notices of Violation to the appropriate regional office of DWQ. 4. Current contact information for their local program to the Division of Energy, Mineral and Land Resources. C. Sediment and Erosion Control Plans for Land-Disturbing Activity Review The Parties agree that the local government shall review erosion and sedimentation control plans for land-disturbing activity (hereinafter, "plans") submitted to its local program under the following standards: 1. Review plans within 30 days of receipt of a new plan and within 15 days of a revised plan. 2. Approve, approve with modifications, approve with performance reservations, or disapprove draft plans in conformance with the basic control objectives contained in 15A NCAC 04B .0106. 3. Notify in writing the person submitting the plan that it has been approved, approved with modifications, approved with performance reservations or disapproved within 30 days of receipt of a new plan and within 15 days of a revised plan. -3- 5 4. Include in written notifications of plan approval the following: a. reference to NPDES General Stormwater Permit NCG 010000, b. expiration date of the approval, c. the right of periodic inspection, and d. condition the approval upon the applicant's compliance with federal and State water quality laws, regulations and rules. 5. Enclose with all written permit notifications the following a. NPDES General Stormwater Permit NCG 010000, and b. Certificate of Approval for posting at the site of the land-disturbing activity. D. Inspection The Parties agree that the local government shall inspect all sites undergoing land-disturbing activity under the following standards: a. Periodically and regularly inspect sites undergoing land-disturbing activity within its jurisdiction. Periodically and regularly means with sufficient frequency to effectively monitor compliance with the SPCA and rules adopted pursuant to the SPCA and the local erosion and sedimentation control ordinance. 2. Document all inspections in writing, including electronic documents. 3. Inspection reports shall include, at a minimum, all information in the model sedimentation inspection report developed by the Commission. 4. Maintain inspection records for active projects in accordance with State and local record retention policies. E. Enforcement The Parties agree that the local government shall enforce its local program ordinance under the following standards: 1. Issue Notices of Violation (hereinafter, "NOV") for any significant violation of the SPCA, rules adopted pursuant to the SPCA, or the local erosion and sedimentation control ordinance documented in an inspection report. An NOV shall be issued to the persons responsible for the violations,pursuant to N.C. Gen. Stat. § 113A-61.1. 2. The NOV shall specify the following: a. describe the violation with reasonable particularity b. request that all illegal activity cease c. the actions that need to be taken to comply with the SPCA and the local ordinance d. a date by which the person must comply with the SPCA and the local ordinance e. inform the violator that any person who fails to comply within the time specified is subject to additional civil and criminal penalties for a continuing violation as provided in G.S. 113A-64 and the local ordinance -4- 6 3. Undertake appropriate enforcement actions, including injunctive relief, or assessment of civil penalties for an initial penalty or a daily penalty for continuing violations. 4. Require a person who engaged in a land-disturbing activity and failed to retain sediment generated by the activity, as required by G.S. 113A-57(3), to restore the waters and land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation. [This space left intentionally blank.] -5- 7 IN WITNESS HEREOF, the Parties enter into this Memorandum of Agreement, this the day of 2012. SEDIMENTATION CONTROL COMMISSION ORANGE COUNTY,NC By: By: Robin K. Smith Bernadette Pelissier Chair Chair Dated: Dated: DIVISION OF ENERGY,MINERAL AND LAND RESOURCES By: By: Bernadette Pelissier Tracy E. Davis Chair Director Dated: Dated: Approved as to Form Approved as to Form John L. Roberts Local Government Attorney Counsel to the Commission Dated: Dated: -6- 8 Appendix I. NORTH CAROLINA GENERAL STATUTES Sedimentation Pollution Control Act(Ch. 113A Art. 4) (selected statutes) §113A-54.Powers and duties of the Commission. revised plan if the commission determines that a (d) In implementing the erosion and sedimentation plan does not comply with the requirements of control program the Commission shall: this Article or the rules adopted pursuant to this Article. (1) Assist and encourage local governments in (2) To review the compliance activities of a developing erosion and sedimentation control programs and, as a part of this assistance, the delegated erosion and sedimentation control Commission shall develop a model local erosion program and to take appropriate compliance and sedimentation control ordinance. The action if the Commission determines that the Commission shall approve, approve as local government has failed to take appropriate modified, or disapprove local programs compliance action. submitted to it pursuant to G.S. 113A-60. (1973, c. 392, s. 7; c. 1417, s. 4; 1987, c. 827, s. 130; 1987 (Reg. Sess., 1988), c. 1000, s. 4; 2002-165, s. 2.5; § 113A-56.Jurisdiction of the Commission. 2006-250, s.2.) (a) The Commission shall have jurisdiction, to the exclusion of local governments, to adopt rules § 113A-60. Local erosion and sedimentation control concerning land-disturbing activities that are: programs. (1) Conducted by the State. (a) A local government may submit to the Commission (2) Conducted by the United States. for its approval an erosion and sedimentation control program for its jurisdiction, and to this end local (3) Conducted by persons having the power of governments are authorized to adopt ordinances and eminent domain other than a local government. regulations necessary to establish and enforce (4) Conducted by a local government. erosion and sedimentation control programs. An ordinance adopted by a local government may (5) Funded in whole or in part by the State or the establish a fee for the review of an erosion and United States. sedimentation control plan and related activities. (b) The Commission may delegate the jurisdiction Local governments are authorized to create or conferred by G.S. 113A-56(a),in whole or in part,to designate agencies or subdivisions of local any other State agency that has submitted an erosion government to administer and enforce the programs. and sedimentation control program to be An ordinance adopted by a local government shall at administered by it,if the program has been approved least meet and may exceed the minimum by the Commission as being in conformity with the requirements of this Article and the rules adopted general State program. pursuant to this Article. Two or more units of local government are authorized to establish a joint (c) The Commission shall have concurrent jurisdiction program and to enter into any agreements that are with local governments that administer a delegated necessary for the proper administration and erosion and sedimentation control program over all enforcement of the program. The resolutions other land-disturbing activities. In addition to the establishing any joint program must be duly authority granted to the Commission in G.S. 113A- recorded in the minutes of the governing body of 60(c), the Commission has the following authority each unit of local government participating in the with respect to a delegated erosion and program, and a certified copy of each resolution sedimentation control program: must be filed with the Commission. (1) To review erosion and sedimentation control (b) The Commission shall review each program plan approvals made by a delegated erosion and submitted and within 90 days of receipt thereof shall sedimentation control program and to require a notify the local government submitting the program 9 that it has been approved, approved with control program shall pay to the Commission the modifications, or disapproved. The Commission portion of the fee that equals eighty percent (80%) shall only approve a program upon determining that of the fee established pursuant to G.S. 113A-54.2(a) its standards equal or exceed those of this Article to cover the cost to the Commission for the and rules adopted pursuant to this Article. administration and enforcement of other components (c) If the Commission determines that any local of the erosion and sedimentation control program. government is failing to administer or enforce an Fees paid to the Commission by a local government approved erosion and sedimentation control shall be deposited in the Sedimentation Account program, it shall notify the local government in established by G.S. 113A-54.2(b). A local writing and shall specify the deficiencies of government that administers a limited erosion and administration and enforcement. If the local sedimentation control program and that receives an government has not taken corrective action within erosion control plan and fee under this subsection 30 days of receipt of notification from the shall immediately transmit the plan to the Commission the Commission shall assume Commission for review. A local government may administration and enforcement of the program until create or designate agencies or subdivisions of the such time as the local government indicates its local government to administer the limited program. willingness and ability to resume administration and Two or more units of local government may enforcement of the program. establish a joint limited program and enter into any agreements necessary for the proper administration (d) A local government may submit to the Commission of the limited program. The resolutions establishing for its approval a limited erosion and sedimentation any joint limited program must be duly recorded in control program for its jurisdiction that grants the the minutes of the governing body of each unit of local government the responsibility only for the local government participating in the limited assessment and collection of fees and for the program, and a certified copy of each resolution inspection of land-disturbing activities within the must be filed with the Commission. Subsections (b) jurisdiction of the local government. The and (c) of this section apply to the approval and Commission shall be responsible for the oversight of limited programs. administration and enforcement of all other (e) Notwithstanding G.S. 113A-61.1, a local components of the erosion and sedimentation control program and the requirements of this Article. government with a limited erosion and The local government may adopt ordinances and sedimentation control program shall not issue a regulations necessary to establish a limited erosion notice of violation if inspection indicates that the and sedimentation control program. An ordinance person engaged in land-disturbing activity has failed adopted by a local government that establishes a to comply with this Article, rules adopted pursuant limited program shall conform to the minimum to this Article, or an approved erosion and requirements regarding the inspection of land- sedimentation control plan. The local government disturbing activities of this Article and the rules shall notify the Commission if any person has adopted pursuant to this Article regarding the initiated land-disturbing activity for which an inspection of land-disturbing activities. The local erosion and sedimentation control plan is required in government shall establish and collect a fee to be the absence of an approved plan. If a local paid by each person who submits an erosion and government with a limited program determines that sedimentation control plan to the local government. a person engaged in a land-disturbing activity has The amount of the fee shall be an amount equal to failed to comply with an approved erosion and eighty percent (80%) of the amount established by sedimentation control plan the local government the Commission pursuant to G.S. 113A-54.2(a) plus shall refer the matter to the Commission for any amount that the local government requires to inspection and enforcement pursuant to G.S. 113A- cover the cost of inspection and program 61.1. administration activities by the local government. (1973, c. 392, s. 11; 1993 (Reg. Sess., 1994), c. 776, s. The total fee shall not exceed one hundred dollars 2002-165, s. 2.8; 2006-250, s. 3.) (S100.00) per acre. A local government that administers a limited erosion and sedimentation