Almost any way you look at it, installing and maintaining erosion and sediment control on a construction site is expensive. By some estimates, ESC measures cost up to $1,500 per year for each acre of cleared ground–sometimes more depending on site conditions and topography. For projects covered under National Pollutant Discharge Elimination System (NPDES) permits, however, the costs of noncompliance can be immeasurably higher. In some cases fines run to tens of thousands of dollars per day, and less tangible costs–work stoppage, damaged reputation–push up the price even more.
Economies of scale, proximity to water, soil type–many factors affect the final price tag for ESC. “On a small site, costs can be higher,” notes Tom Wynkoop, project engineer with Kokosing Construction Company Inc. in Fredericktown, OH. The total land area on a recent project–constructing an 800-ft.-long bridge and the approaches on each side–was less than 2 ac., but Wynkoop estimates the cost for seeding and mulching, silt fence and straw bales, and Dandy Bags for inlet protection at far greater than $3,000 per year. “ODOT [the Ohio Department of Transportation, the owner of the project] sets it up as pay items. We set the unit prices up front in the bid. If we put in 100 feet of silt fence, they pay us for 100 feet of silt fence. So if you’ve got your bid right, you make money at it. If you don’t have your unit prices set right, well, you’re not guaranteed a certain dollar amount, but you get paid for whatever quantity you use.”
On other types of projects–new neighborhood development, for example–the cost of ESC can often be passed along to the buyer in the cost of the new home. And it’s not necessarily a case of buyers paying for something they can’t see. “You go to K-Mart or J.C. Penney, or you walk into a mall to go shopping, and the stores are clean. They’re spotless. Why shouldn’t a homebuyer who’s going to shell out a quarter of a million dollars have a clean street to drive on when he’s out looking for that lot?” remarks Dan Strawser, president of Alpine Stormwater Management Company in Gahanna, OH. “We also do it for the first homebuyers, the people who have their home built first in that subdivision. There’s no reason why they should have to drive through mud to get in and out of their home while construction goes on next to them.”
Complying with local regulations can be easier if they don’t change from place to place, as they often do when a contractor’s work spans a large geographical area where several adjacent municipalities have separate permits, creating a crazy quilt of rules. Peter Whitney, who has been responsible for setting up a program to ensure construction site NPDES compliance in Ventura County, CA, notes this is one problem the county has managed to avoid. The county, 10 of its cities, and the Ventura Country Flood Control District are co-permittees on an NPDES Phase I municipal permit. Although only four cities within the county actually have populations large enough to be covered under Phase I, the rest have opted in. “A number of cities that would have been Phase II cities participated in the Phase I permit–not because they had to. We all banded together. It’s been very effective because it gives us consistency countywide. A contractor doesn’t have one set of rules that applies in a large city but not in a small town.”
Though the requirements are consistent, Whitney finds that many contractors aren’t as familiar with them as they should be. “Our effort is geared at getting larger-scale developments and contractors to comply with the state’s construction general permit and smaller projects to comply with the minimum requirements. We do this with education and outreach and through site visits.”
Whitney’s philosophy is to allow contractors a fairly long leash, giving them not only the freedom to decide which ESC measures are best suited to a job site, but also the responsibility for ensuring those measures actually work. “We are not BMP [best management practice] specific. We’ve developed a checklist-type format for a stormwater pollution control plan that lists all the BMPs from the state handbook. A contractor checks the ones that are applicable,” explains Whitney. “It’s been a double-edged sword,” he adds, noting that although some contractors appreciate the greater flexibility this approach allows them in matching BMPs to site conditions, others say they’d prefer more direction. “They tell us that if we would specify the BMPs, they could determine a dollar amount for that, but by us leaving it wide open, they don’t know how to bid it because they don’t know what we’re expecting.”
Recognizing the growing need for strict compliance, some smaller companies within the county have started marketing ESC services to the larger developers. “There are a couple of subcontractors in the area who are recognizing the market and are going out and finding plans that need this service, and they’re becoming quite knowledgeable in the EC arena,” observes Whitney. “I think it’s a combination of the marketplace creating itself; the education, which is my primary function; and the regulators making it worth their while to do the right thing.”
Rapidly developing Franklin County, OH, had more than 30,000 ac. cleared last year for thousands of construction projects, over a thousand of which disturbed more than 5 ac. of land. The Rocky Fork Creek runs north-south through the county, east of Columbus. “It’s one of our most pristine streams in Franklin County,” points out Bill Resch, vice president of the Friends of the Rocky Fork Watershed. “For the last 10 years, since development came to our community, we’ve attempted to get developers and contractors to adequately and skillfully install sediment control devices.” Whether through ignorance or deliberate, money-saving evasion, he says, all too often that isn’t happening: “You get all these excuses–it’s unbelievable! They’re wrecking our rivers.”
Watershed organizations for both the Rocky Fork and Blacklick Creeks have expressed concern that existing laws aren’t being enforced–that the NPDES permitting system within the state is “broken,” as Resch phrases it. “Our state Environmental Protection Agency is supposed to implement the national permit, but they have failed to do so effectively. They only react to complaints. They don’t do any review of the sediment control plan. You could do it on a napkin and put it in your file. The law is strong, but the implementation is weak. It’s hardly staffed.” In a Columbus Dispatch article last November, Ohio EPA director Christopher Jones acknowledged that understaffing makes it difficult for the agency to regularly inspect all sites and enforce the regulations. But Friends of the Rocky Fork Watershed and other groups have found two very effective means to promote better practices even without strong state enforcement. One is carefully wrought cooperation among the players: contractors, citizens groups, students, and EPA itself. The other–when the first one fails–is the threat of legal action.
Strawser of Alpine Stormwater Management works with many developers and contractors in Franklin County, some of whom have been on the receiving end of that second option. “The watershed groups have found in the Clean Water Act a citizens’ lawsuit action,” he explains. “They do a 60-day NOI [notice of intent to sue] on any projects that are polluting the waters of the state. Under Ohio law, the penalties can range from $9,000 to $25,000 a day.” He doesn’t deny the practice is effective: “They’re publishing the results with the National Watershed Coalition and trying to get the word out nationwide that this is a tool they have in their toolbox. They’re teaching other watershed groups how to do this. I don’t see it as a good thing. I see it more as harassment toward the developers.”
Alpine manufactures BMPs such as the Verti-Pro, a reusable, metal-framed sediment control device that clamps over the grate of a catch basin. The company also offers contractors and developers third-party ESC of the type that Whitney is starting to see in California–although, says Strawser, he’s not aware of other companies providing as wide a range of services. Alpine not only advises a contractor on ESC practices but also monitors water quality; employs a staff of geologists, biologists, and chemists to conduct assessments; and provides public relations services and damage control when something goes wrong. Project owners sometimes seek Alpine’s services after being threatened with legal action. “When they get socked with a 60-day NOI, I’d say we pick up about 75% of that work,” Strawser says. “The developers call us, and we go out in a timely fashion and put the job in compliance–get it redesigned, move the equipment in. Then we represent the owner at the next EPA meeting.” Ideally, though, the process begins long before that. “We like to be involved from the design stage,” states Strawser. “We develop stormwater pollution prevention plans for the project and manage it through to the very end. We manage all the stormwater on the site and take care of any dewatering issues.”
He agrees with Resch on one point: “The regulations and enforcement here in Ohio are somewhat lacking. I think we’re number 48 as far as NPDES compliance.” Strawser has spoken before the state’s General Assembly, urging greater staffing, more inspectors, and better training for Ohio EPA. But he believes there are better ways to achieve compliance than using NOIs. “Teaching a developer that he’s doing something wrong through enforcement, with a $25,000-a-day fine hanging over his head, is not the way to go. This 60-day NOI, the citizens’ lawsuit, has all the developers puckering around here. They do not want to have any sort of adverse publicity. The Friends of the Rocky Fork will call a press conference at a site–that’s how the developer gets his notice. They call all the newspapers, and everybody shows up. In the background is the project name and the name of the developer, and they plaster that all over the media: ‘This is a bad guy.’ And they ride herd on that developer. His name, and the company’s name, is in the paper weekly until it’s in compliance.” Which, of course, is precisely why Resch and others find the NOI so effective.
Resch is no stranger to the ESC options available. He also works on the New Albany school system’s environmental team, which the board of education tasked with designing, coordinating, monitoring, and maintaining sediment control measures during construction of a new school. Students in the school district’s environmental science program help with daily and weekly water-quality monitoring. “It’s worked really well. Alpine has helped advise us, and Ohio EPA helped design the system and preapproved it. It’s been a cooperative effort between the Turner Corporation [the contractor], Alpine, EPA, and our students. We used a 3,000-foot diversion ditch into a settling basin and put coconut fiber mats along the ditch. It’ll be there for 15 months. We’ve passed two inspections by EPA, and they’ve been very impressed.” Resch states that one of the greatest improvements he’s seen over the years to help with compliance are standardized, often reusable, easy-to-install products. These include Alpine’s Verti-Pro, Dandy Products’ Dandy Bag and Beaver Dam for inlet protection, and machines to install silt fence automatically rather than relying on laborers–sometimes inexperienced–to do it uniformly by hand. But not all developers and contractors avail themselves of readily available BMPs or expertise.
Resch notes that just across the street from the school construction project, another project was cited for noncompliance and was assessed a fine. “Most of these developers say it can’t be done, it’s an act of God, it’s a 3-inch rain and nothing can hold it back. We do influent and effluent measurements. We had a 3-inch rain here in December when the ground was frozen, and all of our systems functioned.” When developers can’t or won’t maintain construction sites themselves, he doesn’t hesitate to use the most powerful tools available. “We’ve used the 60-day notice citizens’ suit on six of our biggest developers. If I were in their position, I wouldn’t worry about EPA. The only thing that got them during the last year and a half was to hire an attorney to send a 60-day notice under the Clean Water Act. We’ll take them to the US District Court, in front of a jury, with our digital photographs and our test results and our documents.”
Through its educational efforts, Alpine hopes to have an influence even before projects begin. “We put on erosion control schools geared toward whatever audience we have–the developer or the contractor or the laborers out in the field,” says Strawser. It’s an issue he feels strongly about. “I feel, personally and professionally, that the federal EPA has dropped the ball when it comes to education. Rather than educating through enforcement, which is what they’re trying to do now, the education should have come before, in a national effort–especially to educate the developers, the people who are paying for the earth-disturbing activities. None of these people understands, truly and fully, what the law means and how it relates to their activities. And here we are in 2001 with Phase II ready to kick in, and the developers don’t understand Phase I.” He adds, “They’re educating through enforcement, and that’s wrong.”
Whitney in California agrees that basic knowledge of NPDES goals has often been lacking. “In the past, erosion control meant a row of sandbags or silt fence at the downstream end of a project. Some contractors are just now starting to absorb that permit language that says erosion control will consist of an effective combination of soil stabilization and sediment trapping. They’re recognizing what soil stabilization is and what the options are.”
Whitney also sees education as a major part of his job. Bringing educational workshops to the region–in fact, encouraging the regional water board to sponsor such workshops–is one of his goals. He also gets personally involved, encouraging contractors to do some up-front ESC planning rather than waiting for a site superintendent or inspector to point out problems when construction is already underway. “I’m spreading the word,” he says. “I’m asking developers or contractors working on sites what their plans are in the middle of the summer so that they’ll give it some thought.” He admits, “Although I might not have the final authority over the larger sites, I can function as a ‘mock inspector’ from the state and describe my view of the site and its compliance.”
