T&EITEM2
January 31, 2011
Worksession
MEMORANDUM
TO:
FROM:
Transportation, Infrastructure, Energy and Environment Committee
~
Michael Faden, Senior Legislative Attorney
Worksession:
Bill 60-10, Erosion and Sediment Control- Violations
SUBJECT:
Bill 60-10, Erosion and Sediment Control - Violations, sponsored by Councilmember
EIrich and Council President Ervin, ,was introduced on December 14, 2010. Bill 60-10 would
increase the maximum civil penalty for a violation of the County sediment control law from
$500 (initial offense) or $750 (later offense) to $1000.
A public hearing was held on January 18. All testimony supported the Bill. See
testimony, ©5-16. After the hearing, Executive staff informed Council staff that the County
Executive supports this Bill.
Maximum penalty
Currently, under the County's system of Class A, B, and C
violations, contained in County Code § 1-19, the maximum penalty for a Class A civil violation is
$750 for each offense. The maximum criminal penalty is $1000 per offense. Almost all County
Code violations are treated as civil violations, although the enforcing agency may opt for either
approach unless the underlying law limits the violation to a civil violation. The $1000 maximum
penalty derives from the state's general home rule powers law, the Express Powers Act
(Maryland Code, Article 25A §5(A)), which limits the penalty for violation of a County law to
$1000 (with a few exceptions not relevant here).
As the attached testimony on ©5-16 and news article on © 17-18 indicates, environmental
activists view the current penalties for violations of sediment control laws as too lenient in view
of the watershed damages caused by loose construction practices. They urged that the maximum
penalty for these violations be increased to the highest allowable County level, as this Bill does.
However, after this Bill was introduced, Council staff further checked state laws and
discovered that the state sediment control and stormwater management laws both authorize the
County to bring a civil action against a violator and seek the imposition of a civil penalty up to
$10,000 for each violation. See Maryland Code, Environment Article, §§4-116(c) and 4-215(c).
Council staff is unsure whether the County has ever used either provision, and if not why not.
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Committee members may want to discuss with Executive branch staff the level of fines
sought in the context of overall enforcement policies, including whether, as some speakers at the
hearing and Councilmember EIrich urged, stop work orders be used more frequently.
Council staff recommendation:
enact Bill 60-10 as introduced.
This packet contains:
Bill 60-10
Legislative Request Report
Fiscal Impact Statement
Public hearing testimony
News article
Circle
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1
3
4
5
17
F:\LAW\B[LLS\[ 060 Erosion And Sediment Control-Violations\T&E Memo.Doc
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Bill No.
60-10
Concerning: Erosion
and
Sediment
Control - Violations
Revised: 12-9-10
Draft No. 1
Introduced:
December 14,2010
Expires:
June 14, 2012
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: -!..!,No:::.:n.!.!::e<--_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council member EIrich and Council President Ervin
AN
ACT to:
(1)
(2)
increase the maximum civil penalty for violations of the County sediment control
law; and
generally amend the law regarding enforcement of sediment control requirements.
By amending
Montgomery County Code
Chapter 19, Erosion, Sediment Control, and Storm Water Management
Section 19-69
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No. 60-10
1
Sec.
1.
Section 19-69 is amended as follows:
19-69.
Violations.
Any violation of this Chapter is a Class A violation.
However,
2
3
4
notwithstanding Section 1-19, the maximum penalty for
£!
civil violation of Article!
is $1000 for an initial or repeat offense. Each day a violation continues is a separate
offense.
Approved:
5
6
7
8
Valerie Ervin, President, County Council
Date
9
Approved:
10
Isiah Leggett, County Executive
Date
11
This is a correct copy ofCouncil action.
12
Linda M. Lauer, Clerk of the Council
Date
Vf:\laW\bilIS\1060 erosion and sediment control-violations\biIl1.doc
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LEGISLATIVE REQUEST REPORT
Bi1160-10
Erosion and Sediment Control
-
Violations
DESCRIPTION:
Bill 60-10 would increase the maximum civil penalty for a violation
of the County sediment control law from $500 (initial offense) or
$750 (later offense) to $1000.:"
Inadequate level of civil fines to deter violations of the County
sediment control law.
Increase compliance with the County sediment control law.
Department of Permitting Services, Planning Board
To be requested.
'I
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMA TION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
To be researched.
Currently Class A.
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{PO -
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OFFICE OF MANAGEMENT AND BlJDGET
Isiah Leggett
County Executive
MEMORANDUM
January 11, 2011
Joseph
F.
Beach
Director
060032
TO:
FROM:
SUBJECT:
Valerie Ervin, President, Countx ouneil
Joseph F. Beach, Direc
I
fManagement and Budget
Council Bill 60-10, Erosion and Sediment Control - Violations
The purpose ofthis memorandum
is
to transmit a fiscal and economic impact statement to the
Council on the subject legislation.
LEGISLATION
siJMMARy
BiU60-10 would increase the maximum
civil
penalty for a violation ofthe County sediment
control law from $500 (initial offense) or $750 (repeat offense) to $1,000.
FISCAL AND ECONOMIC
SUMMARY
• ,<,j
As proposed, the bill will not have a significant fiscal impact to the Connty. Violators ofthe
Sediment Control1aw have the right to a hearing
in
District Court and the proposed increase in fines could
result in more violators opting for a hearing as opposed to paying the fine. The Judge may render a verdict of
guilty and will set the fme from $0 to the allowable maximum.
In
most sediment control cases resolved in
court, the Judge sets the fine well below the maximum permitted. Any additional revenues that may result
. from the higher assessed fines could be offset or diminished if the number of cases heard in court increases
and the Judge were to impose a reduced fine.
IT
the number ofhearings increase, the Office of tbe County
Attorney and the Department of Permitting Services have indicated that they would reallocate existing
resources to cover costs associated with the increase in the number of hearings and will absorb any additional
costs within the current budget appropriation.
The Department ofFinance concludes that the proposed increase for the maximum penalty
would not have an economic impact as the increase in fmes is not so significant that construction or
development would be deterred.
'.:,i
The following contributed to and concurred with this analysis: Michael Reah1, Department of
Permitting Services; Marc Hansen, County Attorney; Mike Coveyou, Department ofFinance; and
Amy Wilson, Office of Management and Budget.
JFB:aw
c: Kathleen Boucher, Assistant Chief Administrative Officer
Dee Gonzalez, Offices ofthe County Executive
Carla Reid, Director, Department ofPermitting Services
Marc Hansen, County Attorney
.
Mike Coveyou, Department of Finance
John Cuff, Office ofManagement and Budget
Amy Wilson. Office of Management and Budget
Office of the Director
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101 Monroe Street, 14th Floor' Rockville, Maryland 20850 • 240-777-2800
www.montgom·ery;;ountymd.gov
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Testimony of Steve Dryden
Co-Chair, Montgomery Stormwater Partners Network
Before the Montgomery County Council
January 18, 2011
Re: Bill 60-10 (Increasing Sediment Control Fines)
Thank you, Madame President and members ofthe council, for the opportunity to speak to you
today. I am Steve Dryden, co-chair of the Montgomery Stormwater Partners Network. The
Network was formed in 2005 to support a stronger county stormwater permit; our work with
the Department of Environmental Protection and the Maryland Department of the
Environment resulted in a permit that we believe is a big step forward for cleaner water. Now
numbering almost two dozen enviroFimental and civic organizations, the Stormwater Partners
continues to advocate for policies and programs to reduce runoff and improve the health of our
streams.
A major concern of Network members is the county's enforcement of sediment control
regulations. While we commend the Department of Permitting Service for its devotion to
carrying out its inspection duties, we firmly believe that the one of its chief tools - the power to
fine companies for violating these regulations - needs to be upgraded. That's why we strongly
support Councilman Eirich's bill 60-10 to raise the fine from $500 to $1,000, the maximum
under state law.
The fine has been set at $500 for more than two decades, and meanwhile the county and other
authorities have regularly raised fines for a variety of offences against the public good.
4J,
Somehow, the sediment control fine has remained at level that can only be viewed by most
A
companies as the cost of doing business - if the frequency of violations is any measure. DPS
issues about 1,000 notices of violations annually, but if the situation in my neighborhood in
Bethesda is any indication, this number would double or triple if the department had more
inspectors. I work at home and therefore am able to keep track of the situations at teardowns .
and other construction projects-and I would say that I email DPS every month with a couple of
violations that have not been seen by the inspector.
(over)
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The violations are very predictable:
Silt fences aren't installed, are installed incorrectly, or aren't maintained ..
Large piles of dirt are left uncovered for weeks at a time.
Contractors pump muddy water from excavations directly into the street.
We have provided photos to you to illustrate some of these typical violations.
Raising this finewould signal the seriousness with which the county views this issue. With due
respect to my friends at DPS, I must argue that the problem here is lawbreaking, not "being out
of compliance." There may have been a time when sediment pollution was an obscure
problem; that time has long passed. The fact is, the county has been fighting sediment pollution
for more than three decades; meanwhile, the health of our creeks and the bay has continued to .
decline, and WSSC is spending millions more to filter muddy water it converts to our drinking
water. Construction companies and their subcontractors enjoy an economy in this region that
never really slows down - but despite this blessing, it seems impossible for many to master a
very simple engineering task.
We also are convinced that the county could send a message by instituting a
"
no
excuses"
policy that makes automatic citations more likely than mere warnings. The statistics show that
warnings (also called notices
~Iations)
outnumber citations by as much as 5 to 1 in some.
years. What signal
county sends to speeders - where automatic fines are a common occurrence.
Some inspectors have told me they feel their job is made more difficult by a lenient attitude on
the part of judges who hear appeals. Again, we think the Council needs to send a message that
these penalties are applied for serious lawbreaking, not minor infractions..
The Stormwater Partners hope the Council will see fit to support Mr. Eirich's measure, a step
that will be in line with the solemn declaration by federal authorities to make the Chesapeake
Bay cleanup happen in our lifetime. And who knows, we might raise some money for our
county's depleted treasury. Thank you.
doe~
to environmental lawbreakers? Not the same mess;;1ge that the
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HUNTINGTON PKWY, BETHESDA
NO SILT FENCE; MUD TRACKED INTO STREET
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GREENTREE ROAD, BETHESDA
EXPOSED PILES OF DIRT; INADEQUATE SILT FENCE
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LAMBETH ROAD, BETHESDA
SEDIMENT FLOWS FROM CONSTRUCTION SITE
(j)
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A Case StudY: Sediment Control Problem at Leesborougb Construction
Site. \Vheaton
. Friday, July 30th, 2010
Kathy Michels
From:
vvvv'w.
stormwaterpartners. org
More info on :www.fOSGcQ!:g
Here is a case study of poor erosion and sediment control in Montgomery County. The
site is Leesborough (Centex construction), the former Good Counsel site (bordered by
Georgia Ave., Amherst Ave., Arcola Ave. and Elkin
St.)
in Wheaton, Maryland. The
result was sediment laden ninoff from the construction site. The photos below are from
May 25,2009 (after many similar overflows for months).
Uncontrolled erosion. on-site above basin
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Flow from containment basin, across sidewalk,
into Amherst Ave
@
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Flow into street leading to storm drain at Amherst and Elkin
@
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L
The headwaters ofSligo Creek at Channing and Blueridge Ave.
the sediment laden
runofffrom the LeesboroughiCentex site merging with the clear runofffrom
neighborhood streets.
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Sligo Creek about halfa mile down stream showing the sediment laden flow from the
construction site.
®
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Statement of Bruce A. Gilmore Re Bill
60-1 0
Montgomery County Council
January
18, 2011
My name is Bruce Gilmore and I appear today on behalf of the Anacostia Watershed Society
to testify on Bill
60-10.
I am also the director of the Maryland Stormwater Consortium which
has over tWenty member organizations throughout Maryland.
The legislation before you will increase the civil penalty for violations of the erosion and sedi­
ment control provisions of Chapter
19.
Montgomery County Code from $500 to $1000 for
the initial violation and from $750 to $1000 for subsequent daily violations. We strongly
support this legislation and believe that it will help greatly in breaking the cycle of
continued erosion and sediment control violations during construction in Montgomery
County.
While I urge the County Council to enact this bill, I also urge you to take the time to review
fully the way sediment and erosion plans are approved and enforced
in
the County. Questions
for which you should expect answers include: What is the responsiblity of contractors to stop
erosion and
sediment pollution from their sites? How is this .Iawenforced? Who enforces it and wbaUs
the agency's historical enforcement record over the last 10 years? What is meant by-tbe
term "encouraging compliance" and what distinguishes it from enforcement with respect to
repeat violations?
The above questions which I hope the Council will direct to the appropriate agency are but
a part of the larg.er picture of the damag.e sediment and erosion from construction and
development does to the County waterways, to the Anacostia River and other County
watershetlsand to Chesapeake8ay. Sedimentation carries all manner of pollution to
waterbodies and
is
a pollutant itself. Its transport and Qutright poJlution of waterways is
increasing. If we are to succeed in our efforts to abate it, then this tegislation,
60-10,
must
be enacted. Increasing the cost of sediment and erosion control violations will work anQ
will
not cause the employment disruption which stop work orders often do.
Finally, the County Council should always remember that its action and the action of
the County Executive departments have placed Montgomery County in the forefront
among all other Maryland jurisdictions in enacting a very strong stormwater management
code and implementing it. The enactment of
60-10
will continue this great record Qf
accomplishment which will directly benefit the County's waterways and its citizens
who enjoy them.
Thank you for the opportunity to present this statement.
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Montgomery County Civic Federation
Supports Bill Bill 60-10, Erosion and Sediment Control
This bill is but another small step in the right direction.
It
increases the maximum
amount that can be fined to $1000 the first increase since 1992. If you really want to
put teeth into the law, the $1000 fine should be set - not a maximum. Give the DPS a
clear mandate to impose the full penalty when a violator has failed to come into
compliance within 48 hours of receiving the notice of violation. And issue two additional
citations every 48 hours thereafter until a violation has continued for one week at which
point a SWO is automatic. That's got teeth!
The building industry will squawk and rail againstthe county being
"anti~business"
and
your response should be, "No, we love business but it must be
pro~environment,
clean
business. Builders who do what they are required to do to protect the quality ofthe water
in our streams and drinking water are welcome. Those who flout the law will pay the
maximum penalty. And if you don't want to pay the fine, act quickly to correct the
violations."
.
"
The higher maximum is not a big stick but a tiny twig. Adding $1,000 or 2,000 or 3,000
in fines to the cost of a $700,000 home is an inconsequential price to pay for flouting the
law.
To those who will say we are only doing this to bring in more revenue, we should
respond, "What's wrong with that?" We have a great budget deficit. Here's a legitimate
and useful way to bring in more revenue. If all 274 citations issued in 2008 had been at
the $500 level and all had been paid in full, the county would have taken in $137,000. As
it is, only 141 were paid in full, and the figures from the County Attorney's office don't
indicate whether the citations were at the $500 level or something less. Figures from DPS
show that 340 citations were made in FY09. If each were fined at the proposed
maximum of$1000, and paid in full, the county would have received $340,000. Those
little sticks add up and when they add up to deter crimes against the environment, they
will have a positive affect on all of us.
@
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Stonnwater group urges increase in fines
Wednesday, Aug. 18,2010
Page 1 of2
Stormwater group urges increase in fines
Inspections for sediment violations in the county jump from 12,167 in 2002 to 22,512 in 2009
by Sara Gates
I
Special to The Gazette
If a construction company dumps sediment down a storm drain, it's likely that Steve Dryden, of the
Montgomery County Stormwater Partners Network, will hear about it.
Dryden, of Bethesda, has witnessed dumping and spills and has often been the person to report the offenses,
which can lead to civil citations and $500 county fines.
Stormwater Partners, an environmental activist group, is advocating for increasing the fines associated with
sediment control and run-off to discourage companies from lagging on permits.
"I think this underlines the seriousness of the situation regarding sediment and pollution in Montgomery County
and how day in and day out we are facing these violations and pollution events," said Dryden, who has co­
chaired the group since 2005. "I think that thf! county needs to do a tougher job on these guys."
Dryden and Diane Cameron, Stormwater Partners co-chair and conservation director for the Audubon Naturalist
Society, are working to double the fines for sediment control violations to $1,000 in Montgomery County.
County Councilmember Marc Eirich (D-At large) of Takoma Park has been working with the group on the
issue. He did not return messages for comment Tuesday.
"I hope it will send more of a message. Obviously some big companies don't care. They just factor it into the
cost of business," Dryden said ..
Mud pollution, caused by sediment run-off, can be extremely harmful to waterways and often carries dangerous
materials into the Chesapeake Bay, Cameron said.
Once it gets into streams and rivers, the soil smothers small fish, amphibians and plants, and can choke them to
death, she said.
'
"Most of Montgomery County has clay soils and clay sub-soils, which is a very fme substance that looks almost
like coffee with cream when it gets into the water," Cameron said. "This tends to not only cover eggs and fish,
but carries a lot of toxics with it, causing more damage."
County code dictates that any change in fines for sediment control violations must apply to all class A
violations, said county spokeswoman Esther BovvTing. The county divides violations into classes A, B and C.
The $500 penalty for a class A violation, the most common, applies to noise complaints, hazardous materials
spills and public urination.
"If we find something that's a violation we will tell the contractor or individual that this needs to be cleaned up.
Then we'll come back and see if it's been cleaned up. Our job is to see that the situation has been corrected,"
Bowring said.
The Department of Permitting Services, which assesses fines, stop work orders, and notices of violations for
sediment run-off issues for construction sites, should have more inspectors working more aggressively to
enforce laws on construction sites, Cameron said.
(j))
http://www.gazette.net/stories/081820 10/silvnew204433 _32546.php
8119/2010
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'Stoimwater group urges increase in fines
Page 2 of 2
Data obtained by Stormwater Partners revealed that the department has nearly doubled its number of active
inspections from 12,167 in 2002 to 22,512 in 2009; in addition to assessed fmes, from 200 to 340 in those years,
respectively.
Stop work orders - notices that require companies to cease construction - which Cameron said can be
effective in leading to change, was the same for both those years, did not change much in those years. Ninety­
four orders were given in both 2002 and 2009.
The county issued $79,380 in sediment control fines in 2009, according to the data.
Staff Writer Alex Ruoff contributed to this report.
"
http://www.gazette.net.stories/08182010/silvnew204433_32546.php
8119/2010