Enforcement Response Plan Construction Site Runoff Control · 2017-05-28 · This ERP is part of the Maui District Construction Site Runoff Control Program and describes procedures

Enforcement Response PlanConstruction Site Runoff Control

State of Hawaii Department of TransportationHighways and Harbors Divisions, Maui District

December 2016Version: Final

Version: FinalPage i

December 2016

Enforcement Response Plan – Construction Site Runoff ControlState of Hawaii Department of Transportation, Highways & Harbors Divisions, Maui

District

TABLE OF CONTENTS

Page

List of Figures iiList of Appendices ..................................................................................................................... iiList of Acronyms and Abbreviations ......................................................................................... iii1. Introduction 1-1

1.1 Purpose ................................................................................................................... 1-11.2 Enforcement Policy ................................................................................................. 1-1

1.2.1 Contract Construction Projects ................................................................... 1-31.2.2 Permit Construction Projects ...................................................................... 1-3

1.3 Enforcement Authority ............................................................................................ 1-31.3.1 Hawaii Standard Specifications for Road and Bridge Construction ............. 1-31.3.2 Air and Water Transportation Facilities Divisions, General Provisions for

Construction, .............................................................................................. 1-61.3.3 Project Special Provisions .......................................................................... 1-91.3.4 Hawaii Revised Statutes ............................................................................. 1-91.3.5 Construction Best Management Practices Field Manual............................ 1-101.3.6 Maintenance Activities Best Management Practices Field Manual ............ 1-10

2. Contract Construction Enforcement ................................................................................... 2-12.1 Violations and Methods of Discovery ...................................................................... 2-12.2 Enforcement Actions ............................................................................................... 2-1

2.2.1 Verbal Notification ..................................................................................... 2-22.2.2 Warning Letter or Notice of Non-Compliance ............................................ 2-42.2.3 Assessment of Liquidated Damages ........................................................... 2-52.2.4 Costs of Labor and Materials ...................................................................... 2-52.2.5 Withholding of Payments or Partial or Total Suspension of Work .............. 2-62.2.6 Referrals to DOH ....................................................................................... 2-62.2.7 Terminate for Cause ................................................................................... 2-6

3. Permit Construction Enforcement ...................................................................................... 3-13.1 Violations and Methods of Discovery ...................................................................... 3-13.2 Enforcement Actions ............................................................................................... 3-1

3.2.1 Verbal or Written Notification .................................................................... 3-23.2.2 Verification of Corrective Actions .............................................................. 3-23.2.3 Revoking Permit ........................................................................................ 3-23.2.4 Referrals to DOH ....................................................................................... 3-33.2.5 Notice of Apparent Violation (for projects in DOT-Harbors property) ........ 3-33.2.6 Notice of Finding of Violation and order for Compliance ........................... 3-33.2.7 Assessment of Civil Penalties in a Notice of Harbor Civil Violation ........... 3-33.2.8 Issuance of Summons/Citation, including fines........................................... 3-3

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LIST OF FIGURES

NumberTitle Page

Figure 1-1 Organization Chart for the Construction Site Runoff Control Program. .................. 1-2

Figure 2-1 Flow Chart for Non-Compliances. .......................................................................... 2-3

LIST OF APPENDICES

Appendix Title

A Notice of Non-Compliance Memorandum Sample and Enforcement Letter Sample

B Written Request for Enforcement Action to DOH Sample

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LIST OF ACRONYMS AND ABBREVIATIONS

BMP Best Management Practice

DOH State of Hawaii Department of Health

DOT-HWYS State of Hawaii Department of Transportation, Highways Division, Maui District

DOT-Harbors State of Hawaii Department of Transportation, Harbors Division

ERP Enforcement Response Plan

HDOT State of Hawaii Department of Transportation

HRS Hawaii Revised Statutes

LD Liquidated Damages

Maui District State of Hawaii Department of Transportation, Highways and Harbors Division,Maui District staff and delegated representatives

MS4 DOT-HWYS Maui District’s Municipal Separate Storm Sewer System

MS4 Permit DOT-HWYS NPDES Permit No. HI 15KE674

NGPC Notice of General Permit Coverage

NOI Notice of Intent

NPDES National Pollutant Discharge Elimination System

PS&E Plans, Specifications & Estimates

ROW Right-of-Way

SSBMP Site-Specific Best Management Practice

SWPPP Storm Water Pollution Prevention Plan

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Enforcement Response Plan – Construction Site Runoff ControlState of Hawaii Department of Transportation, Highways & Harbors Divisions, Maui District

1. INTRODUCTION

This Enforcement Response Plan (ERP) was developed to satisfy part 6.(a)(4)(A) of the HawaiiRevised Statutes (HRS) Chapter 11-55 Appendix K NPDES General Permit.

The following is a brief summary of each section included in this ERP:

· Section 1 - Provides an introduction and background of Maui District’s Construction SiteRunoff Control Program.

· Section 2 - Documents how Maui District will execute corrective and enforcement actionson contract construction projects.

· Section 3 - Documents how Maui District will execute corrective and enforcement actionson permitted construction projects.

1.1 Purpose

Discharges of pollutants from Maui District’s construction projects and into the MS4 areprohibited by State and Federal law. This ERP is part of the Maui District Construction SiteRunoff Control Program and describes procedures for enforcement and follow-up actions,including assessment of penalties, when a construction project is not in compliance with the MS4Permit, policies, standards, requirements, and/or applicable permits. Furthermore,implementation of the ERP will ensure a consistent response by Maui District for compliancewith the MS4 Permit and provides the framework for Maui District to impose enforcement onconstruction projects if necessary.

1.2 Enforcement Policy

HDOT’s policy is to ensure all contract and permit construction projects implement BestManagement Practices (BMPs) to prevent the discharge of pollutants from construction projectsites in accordance with the MS4 Permit, policies, standards, project-specific requirements andpermits. As allowed by the various mechanisms described below in Section 1.3, EnforcementAuthority, Maui District is authorized to take enforcement action for non-compliance inaccordance with this ERP.

The organizational structure for the Construction Site Runoff Control Program is provided inFigure 1-1


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Construction Site Runoff Control Program

Figure 1-1 Organization Chart for the Construction Site Runoff Control Program.


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1.2.1 Contract Construction Projects

Contract construction projects are projects that are administered by HDOT Highways or Harborspersonnel and performed by private contractors. The plans, specifications, and estimates (PS&E)of contract projects vary in complexity and size. Mechanisms for enforcement for these projectsare drawn from the contractual responsibility of the Contractor to conform with contractdocuments including the plans and specifications.

1.2.2 Permit Construction Projects

Permits are issued for construction projects that will occur within HDOT property and are notunder the authority (funding) of or administered by HDOT Highways or Harbors personnel.Permit construction projects are required to obtain a Permit to Perform Work Upon StateHighways from HDOT Highways or a lease, revocable permit or Construction Right-of-Entryfrom HDOT Harbors prior to construction activities commencing.

Maui District Highways also issues the following permits for projects that discharge or connectto the MS4:

· Permit to Discharge into the State Highways Drainage System – permit issued for stormwater discharges associated with industrial activities, storm water discharges associatedwith construction activities, construction activity dewatering, hydrotesting, or otherdischarge.

· Permit for Connection to the State Highways Drainage System – permit issued forconnecting to the State Highways drainage system.

1.3 Enforcement Authority

Contract construction projects and permit construction projects are required to implement BMPsto prevent the discharge of pollutants in accordance with the MS4 Permit, policies, standards,requirements, and applicable permits. In accordance with this ERP, and in addition to any projectspecific requirements and applicable permits, Maui District may use the terms of leaseagreements, revocable permit terms and conditions or in the case of contract constructionprojects any mechanisms and guidance documents described below for enforcement authority.

1.3.1 Hawaii Standard Specifications for Road and Bridge Construction

Standard Specifications Section 108.10 Suspension of Work:

(A) Suspension of Work. The Engineer may, by written order, suspend the performance ofthe work, either in whole or in part, for such periods as the Engineer may deemnecessary, for any cause, including but not limited to:

(1) Weather or soil conditions considered unsuitable for prosecution of the work.


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(2) Whenever a redesign that may affect the work is deemed necessary by the Engineer.

(3) Unacceptable noise or dust arising from the construction even if it does not violateany law or regulation.

(4) Failure on the part of the Contractor to:

(a) Correct conditions unsafe for the general public or for the workers.

(b) Carry out orders given by the Engineer.

(c) Perform the work in strict compliance with the provisions of the contract.

(d) Provide adequate supervision on the jobsite.

(5) The convenience of the State.

(B) Partial and Total Suspension. Suspension of work on some but not all items of workshall be considered a “partial suspension”. Suspension of work on all items shall beconsidered “total suspension”. The period of suspension shall be computed from thedate set out in the written order for work to cease until the date of the order for work toresume.

Standard Specifications Section 108.11 Termination of Contract for Cause:

(A) Default. If the Contractor refuses or fails to perform the work, or any separable partthereof, with such diligence as will assure its completion within the time specified in thiscontract, or any extension thereof, or commits any other material breach of this contract,and further fails within seven days after receipt of written notice from the Engineer tocommence and continue correction of the refusal or failure with diligence and promptness,the Engineer may, by written notice to the Contractor, declare the Contractor in breachand terminate the Contractor’s right to proceed with the work or the part of the work as towhich there has been delay or other breach of contract. In such event, the State may takeover the work, perform the same to completion, by contract or otherwise, and may takepossession of, and utilize in completing the work, the materials, appliances, and plants asmay be on the site of the work and necessary therefore. Whether or not the Contractor’sright to proceed with the work is terminated, the Contractor and the Contractor’s suretiesshall be liable for any damage to the State resulting from the Contractor’s refusal or failureto complete the work within the specified time.

(B) Additional Rights and Remedies. The rights and remedies of the State provided in thiscontract are in addition to any other rights and remedies provided by law.

(C) Costs and Charges. All costs and charges incurred by the State, together with the cost ofcompleting the work under contract, will be deducted from any monies due or which wouldor might have become due to the Contractor had it been allowed to complete the workunder the contract. If such expense exceeds the sum which would have been payable under


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the contract, then the Contractor and the surety shall be liable and shall pay the State theamount of the excess.

In case of termination, the Engineer will limit any payment to the Contractor to the part ofthe contract satisfactorily completed at the time of termination. Payment will not be madeuntil the work has satisfactorily been completed and all required documents, including thetax clearance required by Subsection 109.11 – Final Payment are submitted by theContractor. Termination shall not relieve the Contractor or Surety from liability forliquidated damages.

(D)Erroneous Termination for Cause. If, after notice of termination of the Contractor’sright to proceed under this section, it is determined for any reason that good cause didnot exist to allow the State to terminate as provided herein, the rights and obligations ofthe parties shall be the same as, and the relief afforded the Contractor shall be limited to,the provisions contained in Subsection 108.12 – Termination for Convenience.

Standard Specifications Section 109.10 Withholding of Payment for Unsatisfactory Progress:

If the Contractor is progressing or performing the work unsatisfactorily, the Engineer,upon written notice to the Contractor, may withhold sums not exceeding 5 percent of thetotal contract price from subsequent progress payments.

The Engineer may deduct from any amounts due to the Contractor sums assessed asliquidated damages as well as any other charges against the Contractor allowed by law orthe contract documents.

If the Contractor refuses or fails to comply with the equal employment opportunity,affirmative action, non-discrimination, labor compliance, training, implementing andmaintaining satisfactorily the BMP and NPDES standards and disadvantaged businessenterprise requirements, the Engineer at its sole discretion and upon written notice to theContractor may withhold any or all of the monthly progress payments that are due or tobecome due.

With the approval of the State, the Contractor may withdraw from time to time the wholeor any portion of the sum withheld after endorsing over to the State and depositing withthe State any general obligation bond of the State or its political subdivisions suitable tothe State. But in no case will the bond have a face value less than the value of the amountto be withdrawn. The State may sell the bond and use monies directly withheld fromprogress payments or the final payment.

Standard Special Provision Section 209 Temporary Water Pollution, Dust and ErosionControl (dated 2/10/2014):


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· Per Section 209.02 Materials. Comply with applicable materials described in Chapters2 and 3 of the current HDOT “Construction Best Management Practices FieldManual”.

· Per Section 209.03(B) Construction Requirements. The Contractor’s failure tosatisfactorily address these Site-Specific BMP deficiencies, the Engineer reserves theright to employ outside assistance or use the Engineer’s own labor forces to providenecessary corrective measures. The Engineer will charge the Contractor such incurredcosts plus any associated project engineering costs. The Engineer will makeappropriate deductions from the Contractor’s monthly progress estimate. Failure toapply Site-Specific BMP measures may result in one or more of the following:assessment of liquidated damages, suspension, or cancellation of Contract with theContractor being fully responsible for all additional costs incurred by the State.

· Per Section 209.05 Payment. No progress payment will be authorized until theEngineer accepts in writing Site-Specific BMP or when the Contractor fails to maintainproject site in accordance with accepted BMP.

· Per Section 209.05 Payment. For all citations or fines received by the Department fornon-compliance, including compliance with NPDES Permit conditions, the Contractorshall reimburse State within 30 calendar days for full amount of outstanding cost Statehas incurred, or the Engineer will deduct cost from progress payment.

· Per Section 209.05 Payment. The Engineer will assess liquidated damages up to$27,500 per day for non-compliance of each BMP requirement and all otherrequirements in this section.

1.3.2 Air and Water Transportation Facilities Divisions, General Provisions forConstruction,

Section 8.10 - Suspension of Work:

(a) Suspension of Work. The Engineer may, by written order, suspend theperformance of the work, either in whole or in part, for such periods as theEngineer may deem necessary. Unless instructed otherwise by the Engineer, theContractor shall be responsible for the maintenance and protection of the workduring the period of suspension. Suspension may be ordered for any cause,including, but not limited to:

(1) Unanticipated weather or soil conditions considered unsuitable forprosecution of the work.


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(2) Whenever a redesign that may affect the work is deemed necessary bythe Engineer.

(3) Unacceptable noise or dust arising from the construction, even if itdoes not violate any law, regulation, or permit.

(4) Failure on the part of the Contractor to:

(A) Correct conditions unsafe for the general public or for theworkers.

(B) Carry out orders given by the Engineer.

(C) Perform the work in strict compliance with the provisions ofthe contract.

(D) Provide adequate supervision on the jobsite.

(5) The convenience of the State.

(b) Partial and Total Suspension. Suspension of work on some but not all itemsof work shall be considered a “partial suspension”. Suspension of work on allitems shall be considered “total suspension”. The period of suspension shall becomputed from the date set out in the written order for work to cease until thedate of the order for work to resume

Section 8.11 – Termination of Contract for Cause:

(a) Default. If the Contractor refuses or fails to perform the work, or anyseparable part thereof, with such diligence as will assure its completion withinthe time specified in this contract, or any extension thereof, or commits any othermaterial breach of this contract, and further fails within seven days after receiptof written notice from the Engineer to commence and continue correction of therefusal or failure with diligence and promptness, the Engineer may, by writtennotice to the Contractor, declare the Contractor in breach and terminate theContractor’s right to proceed with the work or the part of the work as to whichthere has been delay or other breach of contract. In such event, the State may takeover the work, perform the same to completion, by contract or otherwise, and maytake possession of, and utilize in completing the work, the materials, appliances,and plants as may be on the site of the work and necessary therefore. Whether ornot the Contractor’s right to proceed with the work is terminated, the Contractorand the Contractor’s sureties shall be liable for any damage to the State resultingfrom the Contractor’s refusal or failure to complete the work within the specifiedtime.


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(b) Additional Rights and Remedies. The rights and remedies of the Stateprovided in this contract are in addition to any other rights and remediesprovided by law.

(c) Costs and Charges. All costs and charges incurred by the State, together withthe cost of completing the work under contract, will be deducted from any moniesdue or which would or might have become due to the Contractor had it beenallowed to complete the work under the contract. If such expense exceeds the sumwhich would have been payable under the contract, then the Contractor and thesurety shall be liable and shall pay the State the amount of the excess.

In case of termination, the Engineer will limit any payment to the Contractor tothe part of the contract satisfactorily completed at the time of termination.Payment will not be made until the work has satisfactorily been completed and allrequired documents, including the tax clearance required by Section 9.11 FinalPayment, are submitted by the Contractor. Termination shall not relieve theContractor or Surety from liability for liquidated damages.

(d) Erroneous Termination for Cause. If, after notice of termination of theContractor’s right to proceed under this section, it is determined for any reasonthat good cause did not exist to allow the State to terminate as provided herein,the rights and obligations of the parties shall be the same as and the reliefafforded the Contractor shall be limited to the provisions contained in Section8.12 Termination for Convenience.

Section 9.10(b) – Withholding of Payment for Unsatisfactory Progress:

(b) Withholding of Payment for Unsatisfactory Progress. If the Contractor isprogressing or performing the work unsatisfactorily, the Engineer, upon writtennotice to the Contractor, may withhold sums not exceeding 5 percent of the totalcontract price from subsequent progress payments.

The Engineer may deduct, from any amounts due to the Contractor, sumsassessed as liquidated damages as well as any other charges against theContractor allowed by law or the contract documents.

If the Contractor refuses or fails to comply with the laws and regulations dealingwith equal employment opportunity, affirmative action, non-discrimination, laborcompliance, implementing and maintaining the BMP and NPDES standards, anddisadvantaged business enterprise requirements, the Engineer, at its solediscretion and upon written notice to the Contractor, may withhold any or all ofthe monthly progress payments that are due or to become due.

With the approval of the State, the Contractor may withdraw, from time to time,the whole or any portion of the sum withheld after endorsing over to the State and


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depositing with the State any general obligation bond of the State or its politicalsubdivisions suitable to the State. But in no case will the bond have a face valueless than the value of the amount to be withdrawn. The State may sell the bondand use monies directly withheld from progress payments or the final payment.

Article XIV – Temporary Water, Pollution, Dust and Erosion Control

Per Section 14.4-B- Construction Requirements:

The Contractor’s designate representative specified in Subsection 14.4A.2.f shalladdress any BMP concerns brought up by the Engineer within 24 hours ofnotification, including weekends and holidays. Should the Contractor fail tosatisfactorily address these concerns, the Engineer reserves the right to employoutside assistance or use the Engineer’s own labor forces to provide necessarycorrective measures. The Engineer will charge the Contractor such incurred costsplus any associated project engineering costs. The Engineer will make appropriatedeductions from the Contractor’s monthly progress estimate. Failure to applyBMP shall result in either or both the establishment and increase in the amount ofretainage due to unsatisfactory progress or withholding of monthly progresspayment. Continued failure to apply BMP may result in one or more of thefollowing: Contractor being fully responsible for all additional costs incurred bythe State, Suspension of the contract, or Cancellation of the Contract.

Per Section 14.6 Payment:

No progress payment will be authorized until the Engineer accepts in writing site-specific BMP plan or when the Contractor fails to maintain project site inaccordance with accepted BMP plan.The Contractor shall reimburse the State within 30-days for the full amount of alloutstanding costs incurred by the State for all citations or fines received as a resultof the Contractor’s non-compliance with regulations.

1.3.3 Project Special Provisions

Depending on the nature and the location of the project, additional project specific requirementsmay apply.

1.3.4 Hawaii Revised Statutes

Hawaii Revised Statutes (HRS), Chapter 342D, provides the State of Hawaii Department ofHealth (DOH) the authority to implement and enforce the conditions of NPDES Permits for


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construction projects holding Notice of General Permit Coverage (NGPC) or NPDES IndividualPermits.

1.3.5 Construction Best Management Practices Field Manual

The current version of the HDOT Highways Division Construction BMP Field Manual providesguidance on BMP installation and maintenance procedures for construction activities and focuseson the areas of site management, erosion control, and sediment control. It is intended for use byDOT-HWYS’ personnel involved in construction projects and consultants or contractorsinvolved in projects which require work within DOT-HWYS’ rights-of-way (ROW) or projectswhich connect or discharge to DOT-HWYS’ MS4.

For construction activities within Kahului Harbor the current version of the City and County ofHonolulu Best Management Practice Manual for Construction is used as a guide for both HDOTconstruction projects and tenant improvement projects.

1.3.6 Maintenance Activities Best Management Practices Field Manual

The Maintenance Activities BMP Field Manual provides guidance on BMPs to keep stormdrains and streams clean during maintenance activities, including spills and emergencies. It isintended for use by DOT-HWYS’ personnel involved in maintenance activities, includingroutine maintenance. However, the BMPs included in the Maintenance Activities BMP FieldManual may also be applicable on construction projects.

1.3.7 Additional Mechanisms of Authority for Harbors Division

For Harbors, enforcement authority is provided by the following:

· HRS Title 15 Chapter 266: authorizes HDOT Harbors to issue citations and summons forviolations of its rules and have its actions enforced through the district courts by verdict ofa misdemeanor or fine.

· HAR Title 19 Chapters 41 to 44: establishes uniform safety measures, operationalstandards and requirements, and the conduct for all tenants at State of Hawai‘i harbors.

· Tenant Lease Agreements and/or Revocable Permits: provide Harbors with the right ofentry to conduct inspection and authority to terminate the permit or lease.


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2. CONTRACT CONSTRUCTION ENFORCEMENT

HDOT policy is to ensure all contract construction projects implement BMPs to prevent thedischarge of pollutants from contract construction project sites in accordance with standards andprovisions as described in the Hawaii Standard Specifications for Road and Bridge Construction,Standard Special Provisions, Project Plans and Special Provisions, Air and Water TransportationFacilities Divisions, General Provisions for Construction, DOT-HWYS’ Construction BMP FieldManual and the City and County of Honolulu Best Management Practices Manual forCosntruction. As allowed by these standards and provisions, HDOT is authorized to takeenforcement actions against Contractors for non-compliances in accordance with this ERP.

2.1 Violations and Methods of Discovery

Violations arise when the Contractor is not in compliance with the applicable contract documentsand permits, when the Contractor fails to address non-compliances as directed by HDOT, and/orwhen the Contractor discharges pollutants from HDOT’s construction sites.Non-compliances include BMP deficiencies and failure to meet administrative requirements thatare identified in the contract documents and applicable permits for the project. Timeframes forcorrective actions are typically included in contract specifications or as permit conditions. Non-compliances may be identified through the following sources:

· HDOT personnel conducting routine activities such as driving to or from constructionsites or when inspecting other activities at a site

· Project and permit required inspections/monitoring or independent inspections

· Contractor Compliance Activities, such as conducting and submitting inspectionreports, or preparing, implementing, and updating SWPPPs or SSBMP Plans

· Public complaints

· Regulatory Agency inspections or audits

2.2 Enforcement Actions

Enforcement actions are legal mechanisms to address and correct violations and deter future non-compliance. Enforcement actions are discretionary in nature and are not the primary tool toensure compliance. The enforcement methodology described in this section is a generalizedscheme detailing the common enforcement process for common violations. HDOT reserves theright to implement any enforcement action based upon the facts of the violation. A Flow Chartfor Non-Compliances is provided in Figure 2-1.

HDOT has multiple methods for taking an enforcement action based on the nature of violation.Procedures for enforcement actions for contract construction projects may include the following:

(1) Verbal Notification


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(2) Notice of Non-Compliance

(3) Assessment of Liquidated Damages

(4) Costs of Labor and Materials

(5) Withholding Payments, Partial, or Total Suspension of Work

(6) Referrals to DOH

(7) Terminate for Cause

Enforcement actions may follow the sequence listed above, however, depending on the severityand duration of the non-compliances, enforcement may begin at any step. In general, the lowestlevel of enforcement action necessary to correct a violation and prevent future violations of asimilar nature will be taken by HDOT. A description of each enforcement action is discussed inSections 2.2.1 through 2.2.7.

2.2.1 Verbal Notification

The Inspector, or Engineer may issue a Verbal Notification to the Contractor for any non-compliance. At the discretion of the Engineer, the Verbal Notification may be given inconjunction with a warning letter or Notice of Non-Compliance when non-compliances areidentified. The Verbal Notification may be documented in the BMP Inspection Report and, asapplicable, also in the warning letter or Notice of Non-Compliance. Verification that non-compliances have been addressed will be performed upon notification from the Contractor or atthe discretion of HDOT.

A Verbal Notification may be issued:

· Upon discovery of any non-compliance found during an inspection

· Upon review of the project’s administrative requirements


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Figure 2-1 Flow Chart for Non-Compliances.


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2.2.2 Warning Letter or Notice of Non-Compliance

A warning letter or Notice of Non-Compliance may be issued at the discretion of the Engineerresponsible for oversight of construction and may follow a Verbal Notification. A hard copy ofthe warning letter or Notice of Non-Compliance will be issued to the Contractor’s designatedrepresentative(s) responsible for water pollution, dust, and erosion controls on the project site perthe contract provisions. Hard copy of the notification will be kept in the appropriate project files.

The warning letter or Notice of Non-Compliance should describe the types of non-compliancesfound, the locations of the BMP deficiencies, a schedule for the non-compliances to be broughtback into compliance, and any penalties or liquidated damages that will result if the non-compliances are not addressed in the timeframe noted. Verification that non-compliances havebeen addressed will be performed upon notification from the Contractor or at the discretion ofHDOT.

For DOT-HWYS’ contract construction projects, a Notice of Non-Compliance will be issuedwhen:

· Corrective actions are not taken after a Verbal Notification is issued.

· Contractors are non-responsive to DOT-HWYS’ directives.

· Non-compliances have the potential to cause a discharge.

· Non-compliances are discovered prior to a weekend, holiday, or non-workday and havethe potential to discharge pollutants during a rainfall event. The Engineer will considerissuing a Notice of Non-Compliance to alert the Contractor that there are non-compliancesthat need to be addressed by the end of that day.

Timetables for corrective actions are typically established within the construction contractdocuments (Special Provisions) and/or applicable permit conditions.

A sample Notice of Non-Compliance Memorandum is provided in Appendix A.


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2.2.3 Assessment of Liquidated Damages

At the discretion of the Engineer, the Contractor may be assessed liquidated damages byissuance of an Enforcement Letter. An Enforcement Letter may be issued, with or without aprevious Verbal Notification or Notice of Non-Compliance.Liquidated damages may be assessed for the following:

· Non-compliances have not been corrected in the timeframes required by the contract orpermits.

· Corrective actions are not taken after a Verbal Notification and/or Notice of Non-Compliance is issued.

· Contractors are non-responsive to HDOT directives.

· Repeated non-compliance.

· Non-compliances have the potential to cause a discharge.

· Corrective actions are not completed by the end of the work-day for non-compliancesdiscovered prior to a weekend, holiday, or non-workday that have the potential to dischargepollutants during a rainfall event.

· A polluted discharge has occurred.

The number of days used for the liquidated damages calculation may start on the day that thenon-compliance was required to be corrected, or at the discretion of the Engineer, and shall endon the day that the non-compliance is corrected and verified. If HDOT personnel are not able togo out in the field to verify that the BMP deficiencies are corrected in the timeframe specified,the Contractor can send photographs showing the corrected deficiency via e-mail to the HDOTInspector and Engineer along with documentation on how the deficiency was corrected. TheHDOT Inspector or Engineer may also return to the site to verify the corrective actions areacceptable. If the corrective actions are acceptable, then the clock stops on the day that thedocumentation was received.

The Enforcement Letter shall indicate the amount of liquidated damages that are assessed for thenon-compliances which will be deducted from the Contractor’s next progress payment. TheEnforcement Letter will be sent to the Contractor’s designated representative(s) responsible forwater pollution, dust, and erosion controls on the project site per the contract provisions. A sampleEnforcement Letter is provided in Appendix A.

2.2.4 Costs of Labor and Materials

If the Contractor fails to correct the BMP deficiencies within the required timeframes and HDOTcorrects the BMP deficiencies using outside assistance or HDOT personnel, the Contractor will beassessed the actual costs for materials and labor needed to provide necessary corrective measures.


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These costs will be assessed in addition to any liquidated damages calculated per the contractprovisions. The Engineer will make appropriate deductions from the Contractor’s monthlyprogress payments.

2.2.5 Withholding of Payments or Partial or Total Suspension of Work

If the Contractor fails to bring the non-compliances back into compliance or if the Contractorrepeatedly fails to be in compliance with the requirements of the MS4 Permit, Air and WaterTransportation Facilities Divisions, General Provisions for Construction, Standard Specificationsand Special Provisions, project-specific requirements included in the contract documents, permitsand any other applicable requirements under the NPDES permit program, HDOT may choose towithhold payments or stop work (full or partial shutdown of work) per the mechanisms describedin Section 1.3.1 and 1.3.2.

2.2.6 Referrals to DOH

In the event that HDOT has exhausted its use of sanctions and cannot bring a construction site orconstruction operator into compliance with its policies, standards, or the MS4 Permit, orotherwise deems the site to pose an immediate and significant threat to water quality, the DOHwill be notified via an e-mail notification to [email protected], Attn: EnforcementSection Supervisor, or a written notification. Notification may include a copy of all pertinentinspection checklists, notes and related correspondence.

Additionally, if DOT-HWYS believes that a situation of non-compliance has the potential tosignificantly impact public health or the environment, the case will be also be referred to DOHand may elicit concurrent enforcement actions. A sample of the Written Request for EnforcementAction is provided in Appendix B.

2.2.7 Terminate for Cause

In a situation of continued non-compliance or where the Contractor’s actions have resulted in animmediate or imminent threat to public safety and water quality, HDOT has the option to terminatethe contract for cause per Standard Specifications Section 108.11 Termination of Contract forCause or Section 8.11 of the Air and Water Transportation Facilities Divisions, General Provisionsfor Construction.


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3. PERMIT CONSTRUCTION ENFORCEMENT

HDOT policy is to ensure permit construction projects implement BMPs to prevent the dischargeof pollutants from permitted projects to Maui District’s MS4 in accordance with the Permit toPerform Work Upon State Highways, DOT-HWYS’ Construction BMP Field Manual, the Cityand County of Honolulu Best Management Practice Manual for Construction, the accepted SiteSpecific BMP Plan, revocable permit, lease, and other applicable permits. As allowed by thePermit to Perform Work Upon State Highways, revocable permit or lease, HDOT is authorized totake enforcement actions against permit holders for non-compliances in accordance with this ERP.

3.1 Violations and Methods of Discovery

Violations arise when the permit holder discharges or has the potential to discharge pollutantsfrom its permit project due to non-compliance with the Permit to Perform Work Upon StateHighways; revocable permit or lease and/or fails to submit, amend as appropriate, and/ormaintain an accepted SSBMP Plan or SWPPP.Non-compliances include, but are not limited to, the following:

· Failure to submit a NOI or otherwise obtain a permit.

· Failure to comply with the conditions specified in the NGPC or Individual NPDESPermit, or any other applicable permit.

· Failure to submit an acceptable SSBMP Plan or an acceptable SWPPP for any projectin accordance with applicable permits and guidance documents.

· Failure to install a BMP specified by the SSBMP Plan or SWPPP or permit.

· Failure to properly install or maintain appropriate Site-Specific BMPs in accordancewith applicable plans, permits, and guidance documents.

· Failure to conduct required inspections.

· Failure to comply with the requirements of any other applicable plans, permits andguidance documents.

Non-compliances may be identified through the following sources:

· HDOT personnel conducting routine activities such as driving near permit constructionsites or when inspecting other activities at a site.

· Project and permit required inspections/monitoring or independent inspections.

· Public complaints.

· Regulatory Agency inspections or audits.

3.2 Enforcement Actions


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Enforcement actions are legal mechanisms to address and correct violations and deter future non-compliance. Enforcement actions are discretionary in nature and are not the primary tool toensure compliance. The enforcement methodology described below is a generalized schemedetailing the common enforcement process for common violations. HDOT reserves the right totake or decline any enforcement action based on the facts of the violation.

HDOT procedures for enforcement actions for permit construction projects may include thefollowing:

(1) Verbal or Written Notification

(2) Verification of Corrective Actions

(3) Revoke Permit

(4) Referrals to DOH

Enforcement actions will generally follow the sequence listed above, however, depending on theseverity and duration of the non-compliances, enforcement may begin at any step. In general, thelowest level of enforcement action necessary to correct a violation and prevent future violationsof a similar nature will be taken by HDOT. A description of each enforcement action isdiscussed below.

3.2.1 Verbal or Written Notification

If a non-compliance is identified by an HDOT inspector or engineer the permit holder will beaddressed on site and a request corrective action will be made. If the permit holder does not takeimmediate action to address the non-compliance, a verbal or written notification may be issuedto the permit holder. After a verbal or written notification is issued, the permit holder is requiredto initiate and complete corrective action.

The verbal or written notification may be issued at the discretion of the HDOT inspector orengineer. Additionally, HDOT may notify the consultant designer who developed the SSBMPPlan or SWPPP, and the owner of the project. Written notification may include appropriatetimeframes for corrective actions to be completed as appropriate.

3.2.2 Verification of Corrective Actions

Follow-up inspections and verifications will be conducted by an HDOT representative uponnotification from the permit holder that deficiencies have been corrected to confirm that non-compliances have been corrected in the required timeframe.

3.2.3 Revoking Permit

After a verbal notification is issued to the permit holder and if corrective action is not taken toaddress the non-compliance within the required timeframe, the permit, lease or revocable permit


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may be revoked by HDOT. Once the permit is revoked, access to the HDOT property for thepurpose of construction is no longer allowed. If the permit is revoked, HDOT property must berestored to its original or better condition.

3.2.4 Referrals to DOH

In the event that HDOT has exhausted its use of sanctions and cannot bring a construction site orconstruction operator into compliance with its policies, standards, or the MS4 Permit, orotherwise deems the site to pose an immediate and significant threat to water quality, the DOHwill be notified via an e-mail notification to [email protected], Attn: EnforcementSection Supervisor, or a written notification. Notification may include a copy of all pertinentinspection checklists, notes and related correspondence.

Additionally, if HDOT believes that a situation of non-compliance has the potential tosignificantly impact public health or the environment, the case will be also be referred to DOHand may elicit concurrent enforcement actions. A sample of the Written Request for EnforcementAction is provided in Appendix B.

DOT-Harbors is currently in discussion with DOH and the EPA regarding the possibleimplementation of a civil violations system at Harbors Division. If implemented, this ERP willbe revised as applicable.

Version: FinalAppendix A

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APPENDIX A: NOTICE OF NON-COMPLIANCE/ENFORCEMENT LETTER SAMPLE


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Version: FinalAppendix B

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APPENDIX B: WRITTEN REQUEST FOR ENFORCEMENT ACTION TO DOHSAMPLE


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