HomeMy WebLinkAboutWPO201800051 Correspondence 2022-01-15 (2)Commonwealth of Virginia
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY
VALLEY REGIONAL OFFICE
P.O. Box 3000, Harrisonburg, Virginia 22801
(540) 574-7800 FAX (804) 6984178
Located at 4411 Early Road, Harrisonburg, Virginia
www.deg.virginia.sov
Ann Jennings
Secretary of Natural and Historic Resources
David K. Paylor
Director
(804)698-4000
Amy Thatcher Owens
Regional Director
STATE WATER CONTROL BOARD
ENFORCEMENT ACTION - ORDER BY CONSENT
ISSUED TO
BROOKHILL APARTMENTS, LLC
FOR
BROOKHILL APARTMENTS
Virginia Pollutant Discharge Elimination System Registration No.
VAR10M149
SECTION A: Purpose
This is a Consent Order issued under the authority of Va. Code §§ 62.1-44.15, 62.1-
44.15:25, and 62.1-44.15:48, between the State Water Control Board and Brookhill Apartments,
LLC, regarding the Brookhill Apartments Site, for the purpose of resolving certain violations of
the State Water Control Law and the applicable permit and/or regulations.
SECTION B: Definitions
Unless the context clearly indicates otherwise, the following words and terms have the
meaning assigned to them below:
"305(b) report" means the report required by Section 305(b) of the Clean Water Act (33
United States Code § 1315(b)), and Va. Code § 62.1-44.19:5 for providing Congress and
the public an accurate and comprehensive assessment of the quality of State surface
waters.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
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2. "2014 Permit" means the General VPDES Permit for Discharges of Stormwater from
Construction Activities, No. VAR10, promulgated at 9 VAC 25-880-70, which was
issued under the State Water Control Law, the VSMP Regulations, and the General
Permit Regulation on July 1, 2014 and which expires on June 30, 2019.
3. "2019 Permit" means the General VPDES Permit for Discharges of Stormwater from
Construction Activities, No. VAR10, promulgated at 9 VAC 25-880-70, which was
issued under the State Water Control Law, the VSMP Regulations, and the General
Permit Regulation on July 1, 2019 and which expires on June 30, 2024.
4. "Board" means the State Water Control Board, a permanent citizens' board of the
Commonwealth of Virginia, as described in Va. Code §§ 10.1-1184 and 62.1-44.7.
5. `Brookhill" means Brookhill Apartments, LLC, a company authorized to do business in
Virginia, and its affiliates, partners, and subsidiaries. Brookhill is a "person" within the
meaning of Va. Code § 62.1-44.3.
6. "Construction activity" means any clearing, grading or excavation resulting in land
disturbance of equal to or greater than one acre, or disturbance of less than one acre of
total land area that is part of a larger common plan of development or sale if the larger
common plan will ultimately disturb equal to or greater than one acre.
7. "Department" or "DEQ" means the Department of Environmental Quality, an agency of
the Commonwealth of Virginia, as described in Va. Code § 10.1-1183.
8. "Director" means the Director of the Department of Environmental Quality, as described
in Va. Code § 10.1-1185.
9. "Discharge" means the discharge of a pollutant.
10, "Discharge of a pollutant" means:
a. Any addition of any pollutant or combination of pollutants to surface waters from
any point source; or
b. Any addition of any pollutant or combination of pollutants to the waters of the
contiguous zone or the ocean from any point source other than a vessel or other
floating craft which is being used as a means of transportation.
11. "Facility" or "Site" means the Brookhill Apartments Site located northeast of the
intersection of US Route 29 North and Route 643 (Polo Grounds Road) in Albemarle
County, Virginia, from which discharges of stormwater associated with construction
activity occur.
12. "General Permit Regulation" means the General VPDES Permit for Discharges of
Stormwater from Construction Activities, 9 VAC 25-880-1 et seq.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR 10M149
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13. "Land disturbance" or "land -disturbing activity" means a man-made change to the land
surface that potentially changes its runoff characteristics including clearing, grading, or
excavation, except that the term shall not include those exemptions specified in Va. Code
§ 62.1-44.15:34.
14. "Notice of Violation" or "NOV" means a type of Notice of Alleged Violation under Va.
Code § 62.144.15.
15. "Order" means this document, also known as a "Consent Order" or "Order by Consent,"
a type of Special Order under the State Water Control Law.
16. "Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials (except those regulated under the Atomic Energy Act of 1954, as
amended (42 U.S.C. § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste discharged into water...." 9
VAC 25-870-10.
17. "Pollution" means "such alteration of the physical, chemical, or biological properties of
any state waters as will or is likely to create a nuisance or render such waters (a) harmful
or detrimental or injurious to the public health, safety, or welfare or to the health of
animals, fish, or aquatic life; (b) unsuitable with reasonable treatment for use as present
or possible future sources of public water supply; or (c) unsuitable for recreational,
commercial, industrial, agricultural, or other reasonable uses, provided that (i) an
alteration of the physical, chemical, or biological property of state waters or a discharge
or deposit of sewage, industrial wastes or other wastes to state waters by any owner
which by itself is not sufficient to cause pollution but which, in combination with such
alteration of or discharge or deposit to state waters by other owners, is sufficient to cause
pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii)
contributing to the contravention of standards of water quality duly established by the
Board, are `pollution."' Va. Code § 62.1-44.3.
18. "State Water Control Law" means Chapter 3.1 (§ 62.144.2 et seq.) of Title 62.1 of the
Va. Code.
19. "State Waters" means all water, on the surface and under the ground, wholly or partially
within or bordering the Commonwealth or within its jurisdiction, including wetlands.
Va. Code § 62.1-44.3.
20. "Stormwater" means precipitation that is discharged across the land surface or through
conveyances to one or more waterways and that may include stormwater runoff, snow
melt runoff, and surface runoff and drainage. Va. Code § 62.1-44.15:24.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
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21. "Stormwater management plan" means a document or series of documents containing
material describing methods for complying with the requirements of a VSMP or the
VSMP Regulations, 9 VAC 25-870-10.
22. "SWPPP" means Stormwater Pollution Prevention Plan, which is a document that is
prepared in accordance with good engineering practices and that identifies potential
sources of pollutants that may reasonably be expected to affect the quality of stormwater
discharges. A SWPPP required under a VSMP for construction activities shall identify
and require the implementation of control measures, and shall include, but not be limited
to the inclusion of, or the incorporation by reference of an approved erosion and sediment
control plan, an approved stormwater management plan, and a pollution prevention plan.
9 VAC 25-870-10.
23. "Virginia Stormwater Management Act" means Article 2.3 (§ 62.1-44.15:24 et seq.) of
Chapter 3.1 of Title 62.1 of the Va. Code.
24. "Va. Code" means the Code of Virginia (1950), as amended.
25. "VAC" means the Virginia Administrative Code.
26. `VPDES" means Virginia Pollutant Discharge Elimination System.
27. "VSMP" means the Virginia Stormwater Management Program, which is a program
approved by the Soil and Water Conservation Board after September 13, 2011, and until
June 30, 2013, or the State Water Control Board on and after June 30, 2013, that has been
established by a VSMP authority to manage the quality and quantity of runoff resulting
from land -disturbing activities and shall include such items as local ordinances, rules,
permit requirements, annual standards and specifications, policies and guidelines,
technical materials, and requirements for plan review, inspection, enforcement, where
authorized in this article, and evaluation consistent with the requirements of this article
and associated regulations. Va. Code § 62.1-44.15:24.
28. "VSMP authority" means an authority approved by the Board after September 13, 2011,
to operate a VSMP or, until such approval is given, the Department. An authority may
include a locality; state entity, including the Department; federal entity; or for linear
projects subject annual standards and specifications in accordance with subsection B of §
62.1-44.15-31, electric, natural gas, and telephone utility companies, interstate and
intrastate natural gas pipeline companies, railroad companies, or authorities created
pursuant to § 15.2-5102. Va. Code § 62.1-44.15:24.
29. `VSMP Regulations" means the Virginia Stormwater Management Program (VSMP)
Regulations, 9 VAC 25-870-10 et seq.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR 10M149
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SECTION C: Findinas of Fact and Conclusions of Law
Brookhill owns and is developing the Brookhill Apartments Site located in Albemarle
County, Virginia, from which stormwater associated with construction activity is
discharged.
2. Albemarle County is the VSMP authority for the Site.
3. Brookhill applied for and, on February 25, 2019, was granted coverage under the 2014
Permit and assigned registration number VAR IOM149. On June 30, 2019, the 2014
Permit expired, and DEQ granted Brookhill coverage under the 2019 Permit, under the
same registration number, which expires on June 30, 2024.
4. The 2014 Permit allowed and the 2019 Permit allows Brookhill to discharge stormwater
associated with construction activities from the Site to an unnamed tributary to South
Fork Rivanna River, in compliance with the terms and conditions of the 2014 and 2019
Permits.
5. The unnamed tributary to South Fork Rivanna River is a surface water located wholly
within the Commonwealth and is a "state water" under the State Water Control Law.
6. The unnamed tributary to South Fork Rivanna River is located in the Middle James River
Basin. The unnamed tributary to South Fork Rivanna River was not assessed in DEQ's
305(b) report. The South Fork Rivanna River was assessed in DEQ's 305(b) report as
impaired for bacteria and the General Standard (benthics).
7. On March 28, 2019, DEQ visited the Site to conduct an inspection. During the
inspection, DEQ staff documented that Brookhill failed to comply with the following
requirements related to the SWPPP:
a. A copy of the coverage letter was not included in the SWPPP.
2014 Permit Part II.A.1 b. states that: "The SWPPP shall include the following
items: (1) General information:... (b) Upon receipt, a copy of the notice of
coverage under the general VDPES permit for discharges of stormwater from
construction activities (i.e., notice of coverage letter)."
b. The name, phone, and qualifications of the person performing the inspections was
not included in the SWPPP.
2014 Permit Part II.A.6, states that: "The SWPPP shall include the following
items:... (6) Qualified personnel. The name, phone number, and qualifications of
the qualified personnel conducting inspections required by the general permit."
c. A copy of the approved Stormwater Management Plan was not included in the
SWPPP.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
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2014 Permit Part H.A.3. states that: "The SWPPP shall include the following
items:... (3) Stormwater management plan. (a) New construction activities. A
stormwater management plan approved by the VSMP authority...."
8. During the March 28, 2019 inspection, DEQ staff documented that Brookhill failed to
comply with the following requirements related to the erosion and sediment controls:
a. Extensive grading had occurred without perimeter controls.
9 VAC 25-840-40(4) states that: "Sediment basins and traps, perimeter dikes,
sediment barriers and other measures intended to trap sediment shall be
constructed as a first step in any land -disturbing activity and shall be made
functional before upslope land disturbance takes place."
b. There were disturbed areas throughout the Site without stabilization, including soil
stockpiles and diversion dikes.
9 VAC 25-840-40(1) states that: "Permanent or temporary soil stabilization shall
be applied to denuded areas within seven days after final grade is reached on any
portion of the site. Temporary soil stabilization shall be applied within seven days
to denuded areas that may not be at final grade but will remain dormant for longer
than 14 days. Permanent stabilization shall be applied to areas that are to be left
dormant for more than one year."
9 VAC 25-840-40(2) states that: "During construction of the project, soil stock
piles and borrow areas shall be stabilized or protected with sediment trapping
measures. The applicant is responsible for the temporary protection and permanent
stabilization of all soil stockpiles on site as well as borrow areas and soil
intentionally transported from the project site."
9 VAC 25-840-40(5) states that: "Stabilization measures shall be applied to
earthen structures such as dams, dikes and diversions immediately after
installation."
c. The construction entrance had not been installed.
9 VAC 25-840-40(17) states that: "Where construction vehicle access routes
intersect paved or public roads, provisions shall be made to minimize the transport
of sediment by vehicular tracking onto the paved surface. Where sediment is
transported onto a paved or public road surface, the road surface shall be cleaned
thoroughly at the end of each day. Sediment shall be removed from the roads by
shoveling or sweeping and transported to a sediment control disposal area. Street
washing shall be allowed only after sediment is removed in this manner. This
provision shall apply to individual development lots as well as to larger land -
disturbing activities."
Consent Order
BrookMll Apartments, LLC; VPDES Permit No. VAR 10M149
Page 7 of 12
9. On April 25, 2019, DEQ visited the Site to conduct an inspection. During the inspection,
DEQ staff documented that Brookhill failed to comply with following requirements
related to the erosion and sediment controls:
a. Sediment trapping measures were not installed as a first step in land disturbing
activities.
9 VAC 25-840-40(4) states that: "Sediment basins and traps, perimeter dikes,
sediment barriers and other measures intended to trap sediment shall be
constructed as a first step in any land -disturbing activity and shall be made
functional before upslope land disturbance takes place."
b. Earthen structures were not stabilized immediately after installation.
9 VAC 25-840-40(5) states that: "Stabilization measures shall be applied to
earthen structures such as dams, dikes and diversions immediately after
installation."
c. The construction entrance had not been installed.
9 VAC 25-840-40(17) states that: "Where construction vehicle access routes
intersect paved or public roads, provisions shall be made to minimize the transport
of sediment by vehicular tracking onto the paved surface. Where sediment is
transported onto a paved or public road surface, the road surface shall be cleaned
thoroughly at the end of each day. Sediment shall be removed from the roads by
shoveling or sweeping and transported to a sediment control disposal area. Street
washing shall be allowed only after sediment is removed in this manner. This
provision shall apply to individual development lots as well as to larger land -
disturbing activities."
d. Stormwater conveyance channels were not stabilized.
9 VAC 25-840-40(l 1) states that: "Before newly constructed stormwater
conveyance channels or pipes are made operational, adequate outlet protection
and any required temporary or permanent channel lining shall be installed in both
the conveyance channel and receiving channel."
10.On April 29, 2019, DEQ issued Notice of Violation No. 2019-VRO-0008 for alleged
violations related to the March 28, 2019 inspection.
11.On May 21, 2019, DEQ staff met with Brookhill at the Site. During the Site inspection,
DEQ staff observed missing controls, and advised Brookhill to consult with an engineer
for appropriate design.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VARlOM149
Page 8 of 12
12. On August 7, 2019, Brookhill notified DEQ of a discharge of sediment from the Site to
surface waters adjacent to the Site. The discharge to surface waters occurred on August
5, 2019. The notification identified approximately 300 linear feet of stream channel
impacts. Removal of sediment from the stream channel and restoration of controls at the
Site began immediately upon discovery.
13. On August 27, 2019, DEQ staff conducted a stormwater and Virginia Water Protection
program inspection at the Site, and observed the stream channel that received the
discharge of measureable sediment from the Site. No additional restoration measures
were necessary.
Va. Code § 62.1-44.15:20(A) states that: "Except in compliance with an individual or
general Virginia Water Protection Permit issued in accordance with this article, it shall be
unlawful to: (1) Excavate in a wetland; (2) On or after October 1, 2001, conduct the
following in a wetland: (a) New activities to cause draining that significantly alters or
degrades existing wetland acreage or functions; (b) Filling or dumping; (c) Permanent
flooding or impounding; or (d) New activities that cause significant alteration or
degradation of existing wetland acreage or functions; or (3) Alter the physical, chemical,
or biological properties of state waters and make them detrimental to the public health,
animal or aquatic life, or to the uses of such waters for domestic or industrial
consumption, or for recreation, or for other uses unless authorized by a certificate issued
by the Board."
9 VAC 25-210-50(A) states that: "Except in compliance with a VWP permit, unless the
activity is otherwise exempted or excluded, no person shall dredge, fill, or discharge any
pollutant into, or adjacent to surface waters; withdraw surface water; otherwise alter the
physical, chemical, or biological properties of state waters regulated under this chapter
and make them detrimental to the public health, to animal or aquatic life, or to the uses of
such waters for domestic or industrial consumption, for recreation, or for other uses, ..."
14. Based on the results of the March 26, 2019 and April 25, 2019 inspections, and the
August 7, 2019 notification by Brookhill, the Board concludes that Brookhill violated Va.
Code § 62.1-44.15:20(A), 9 VAC 25-210-50(A), 9 VAC 25-840-40(1), 9 VAC 25-840-
40(2), 9 VAC 25-840-40(4), 9 VAC 25-840-40(5), 9 VAC 25-840-40(11), and 9 VAC
25-840-40(17), and the conditions of 2014 Permit Parts II.A.l.b, II.A.3, ILAA, and
II.A.6, as described in paragraphs C(3) through C(13) of this Order.
15. On August 11, 2021, DEQ staff conducted a stormwater inspection at the Site and
verified that the violations describe above, have been corrected, and no additional
deficiencies were observed.
SECTION D: Agreement and Order
Accordingly, by virtue of the authority granted it in Va. Code §§ 62.1-44.15, 62.1-
44.15:25, and 62.1-44.15:48, the Board orders Brookhill, and Brookbill agrees to:
Consent Order
Brookhdl Apartments, LLC; VPDES Permit No. VAR10M149
Page 9 of 12
1. Pay a civil charge of $24,512.50 within 30 days of the effective date of the Order in
settlement of the violations cited in this Order.
a. Brookhill shall indicate that a payment of $18,825 is being made in accordance with
the requirements of this Order for deposit into the Virginia Stonnwater Management
Fund.
b. Brookhill shall indicate that a payment of $5,687.50 is being made in accordance with
requirements of this Order for deposit into the Virginia Environmental Emergency
Response Fund (VEERF).
Payment shall be made by check, certified check, money order or cashier's check payable to the
"Treasurer of Virginia," and delivered to:
Receipts Control
Department of Environmental Quality
Post Office Box 1104
Richmond, Virginia 23218
Brookhill shall include its Federal Employer Identification Number (FEIN) with the civil charge
payment and shall indicate that the payment is being made in accordance with the requirements
of this Order. If the Department has to refer collection of moneys due under this Order to the
Department of Law, Brookhill shall be liable for attorneys' fees of 30% of the amount
outstanding.
SECTION E: Administrative Provisions
1. The Board may modify, rewrite, or amend this Order with the consent of Brookhill for good
cause shown by Brookhill, or on its own motion pursuant to the Administrative Process Act,
Va. Code § 2.2-4000 et seq., after notice and opportunity to be heard.
2. This Order addresses and resolves only those violations specifically identified in Section C of
this Order and in NOV No. 2019-VRO-0008 dated April 29, 2019. This Order shall not
preclude the Board or the Director from taking any action authorized by law, including but
not limited to: (1) taking any action authorized by law regarding any additional, subsequent,
or subsequently discovered violations; (2) seeking subsequent remediation of the facility; or
(3) taking subsequent action to enforce the Order.
3. For purposes of this Order and subsequent actions with respect to this Order only, Brookhill
admits the jurisdictional allegations, findings of fact, and conclusions of law contained
herein.
4. Brookhill consents to venue in the Circuit Court of the City of Richmond for any civil action
taken to enforce the terms of this Order.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
Page 10 of 12
5. Brookhill declares it has received fair and due process under the Administrative Process Act
and the State Water Control Law and it waives the right to any hearing or other
administrative proceeding authorized or required by law or regulation, and to any judicial
review of any issue of fact or law contained herein. Nothing herein shall be construed as a
waiver of the right to any administrative proceeding for, or to judicial review of, any action
taken by the Board to modify, rewrite, amend, or enforce this Order.
6. Failure by Brookhill to comply with any of the terms of this Order shall constitute a violation
of an order of the Board. Nothing herein shall waive the initiation of appropriate
enforcement actions or the issuance of additional orders as appropriate by the Board or the
Director as a result of such violations. Nothing herein shall affect appropriate enforcement
actions by any other federal, state, or local regulatory authority.
7. If any provision of this Order is found to be unenforceable for any reason, the remainder of
the Order shall remain in full force and effect.
8. Brookhill shall be responsible for failure to comply with any of the terms and conditions of
this Order unless compliance is made impossible by earthquake, flood, other acts of God,
war, strike, or such other unforeseeable circumstances beyond its control and not due to a
lack of good faith or diligence on its part. Brookhill shall demonstrate that such
circumstances were beyond its control and not due to a lack of good faith or diligence on its
part. Brookhill shall notify the DEQ Regional Director verbally within 24 hours and in
writing within three business days when circumstances are anticipated to occur, are
occurring, or have occurred that may delay compliance or cause noncompliance with any
requirement of the Order. Such notice shall set forth:
a. the reasons for the delay or noncompliance;
b. the projected duration of any such delay or noncompliance;
c. the measures taken and to be taken to prevent or minimize such delay or noncompliance;
and
d. the timetable by which such measures will be implemented and the date full compliance
will be achieved.
Failure to so notify the Regional Director verbally within 24 hours and in writing within
three business days, of learning of any condition above, which the parties intend to assert will
result in the impossibility of compliance, shall constitute a waiver of any claim to inability to
comply with a requirement of this Order.
9. This Order is binding on the parties hereto and any successors in interest, designees and
assigns, jointly and severally.
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
Page 11 of 12
10. This Order shall become effective upon execution by both the Director or his designee and
Brookhill. Nevertheless, Brookhill agrees to be bound by any compliance date which
precedes the effective date of this Order.
11. This Order shall continue in effect until:
a. the Director or his designee terminates the Order after Brookhill has completed all of the
requirements of the Order;
b. Brookhill petitions the Director or his designee to terminate the Order after it has
completed all of the requirements of the Order and the Director or his designee approves
the termination of the Order; or
c. the Director or Board terminates the Order in his or its sole discretion upon 30 days'
written notice to Brookhill.
Termination of this Order, or any obligation imposed in this Order, shall not operate to
relieve Brookhill from its obligation to comply with any statute, regulation, permit condition,
other order, certificate, certification, standard, or requirement otherwise applicable.
12. Any plans, reports, schedules or specifications attached hereto or submitted by Brookhill and
approved by the Department pursuant to this Order are incorporated into this Order. Any
non-compliance with such approved documents shall be considered a violation of this Order.
13. The undersigned representative of Brookhill certifies that he or she is a responsible official
authorized to enter into the terms and conditions of this Order and to execute and legally bind
Brookhill to this document. Any documents to be submitted pursuant to this Order shall also
be submitted by a responsible official of Brookhill.
14. This Order constitutes the entire agreement and understanding of the parties concerning
settlement of the violations identified in Section C of this Order, and there are no
representations, warranties, covenants, terms or conditions agreed upon between the parties
other than those expressed in this Order.
15. By its signature below, Brookhill voluntarily agrees to the issuance of this Order.
And it is so ORDERED this day of 202_
Amy T. Owens, Regional Director
Department of Environmental Quality
Consent Order
Brookhill Apartments, LLC; VPDES Permit No. VAR10M149
Page 12 of 12
Brookhill Apartments, LLC voluntarily agrejj to the_i,ssuance of this Order.
Date: 1 2v i By:
(Person) (Title)
Brookhill Apartments, LLC
Commonwealth of Virginia
CitylCounty of AAe 4l./
The foregoing document was signed and a -ilk acknowledged before me this Z 6day of
Oece, `�e r , 20 Ll , by ►'i A& who is
MMl se, of Brookhill A artments, LLC, on behalf of the company.
Notary Public
783 567,E
Registration No.
My commission expires: 313I b-3
Notary seal:
STEPHEN B. CLAY
NOTARY PUBLIC
REG. #7935676
COMMONWEALTH OF VARGINIt
MY COMMISSION EXPIRES MARCH