Stites & Harbison, PLLC

Environmental regulatory agencies have identified Public Enemy Number one, and it is You, the home builder.  No slack, no excuses, just strict liability.  Both the Tennessee Department of Environment and Conservation (TDEC) and the U.S. Environmental Protection Agency (EPA) have placed an unprecedented amount of resources toward enforcing requirements that are supposed to keep excessive soil out of streams.  Local governments are flexing their muscles in their implementation of the municipal separate stormwater sewer system (MS4).  The pendulum has now swung to the point that any amount of discoloration in a ditch or stream from a construction site is subject to an order and a hefty fine by one or more of these regulatory agencies.  The battle lines have been drawn and builders need to make sure they are prepared to defend themselves with increased effort at compliance and documentation of compliance.

The Home Builders Association of Tennessee (HBAT) is working to make sure that stormwater requirements are understandable and fair.  HBAT commented extensively on TDEC's 2005 Construction General Permit (CGP) and negotiated fairer and clearer requirements to recently adopted amendments to state water quality standards.  As a result requirements such as buffer zones, inspections, requirements for commercial builders, and other requirements were modified.  In addition, HBAT is working with the state stormwater coordinator to assure that the home builder perspective is always taken into consideration in implementation and interpretation of requirements.

HBAT supports and encourages construction activities that do not cause pollution through uncontrolled runoff.  Clean water is an amenity to our development and excess sediment runoff should be controlled. The extent to which success of this is determined, however, not by the developer, but by the federal, state and regulatory agencies.  This article identifies some of the key features of the state Stormwater program and offers suggestions for assuring compliance.

ENFORCEMENT INITIATIVES

The TDEC and the Tennessee Attorney General recently announced a new Stormwater Enforcement Initiative that targets repeat violators for significant enforcement action and penalties.  Deputy TDEC Commissioner, Paul Sloan, announced 8 separate features of the new policy at the Tennessee Bar Association's Environmental Law Forum, February 9, 2007.  They are:
Improve the consistency of statewide enforcement by appointing a statewide stormwater coordinator
Increase the number of field personnel (29 new positions likely)
Development of an "expedited order" as a mechanism for field office personnel to issue an order to a violator at the time of inspection
Disallow coverage under the CGP; require problem actors to apply for an individual permit
Evaluate MS4s to determine whether local municipalities should/could become delegated permitting authorities, placing TDEC in more of a support role ($200,000 EPA grant to assist in this process)
Encourage industry and developers to regulate themselves through a "Leadership Excellence Program" (no details on this right now)
Support local watershed groups that "take ownership" of stormwater issues in their own watersheds
Expand the erosion control training program so that there is a certified person at every site

Attorney General Robert Cooper also announced at the same conference on February 9, 2007 that his office was giving significant priority to environmental issues and stormwater in particular.  The Attorney General will be initiating judicial actions rather than taking appeals of administrative boards from TDEC administrative orders against violators where (1) there are egregious, repeat violations, and (2) there is significant harm or risk of harm to high quality Tennessee waters.  The Attorney General, in targeting these offenders will provide an opportunity for the violator to come into compliance prior to initiating the civil judicial action, but there must be a good faith demonstration of the violator's efforts to cure the violation.  The Attorney General will also seek injunctive relief in addition to monetary damages.

The EPA is now getting into the Act.  EPA Region IV initiatives are targeting construction stormwater enforcement in the Southeast.  Even though TDEC is supposed to be the primary regulatory authority, EPA is stepping in and conducting its on inspections under the Tennessee permit program.  EPA administrative orders are onerous and the federal administrative process can be complicated.

Finally, more and more private citizens are filing federal court lawsuits under the federal Clean Water Act seeking $32,500 per day in penalties and their costs of litigation.  These lawsuits can be extremely expensive and can quickly exceed any profit planned for a development.

STATE AND FEDERAL PERMITTING OF CONSTRUCTION ACTIVITIES

The Construction General Permit effective June 17, 2005, applies to construction activities impacting one (1) acre or greater.  The permit is actually a permit issued under the federal Clean Water Act's National Pollutant Discharge Elimination System (NPDES). The Clean Water Act prohibits a discharge of pollutants into waters of the United States from a point source.  EPA and courts have determined that construction activities one acre or greater where drainage is into waters of the United States, is a discharge and construction activities must be governed by the permit.  TDEC has authorization from EPA to administer the NPDES program and it requires the permit for construction activities.

The importance of the general permit cannot be understated.  An individual permit, such as an aquatic resource alteration permit, is a time consuming process which includes individual TDEC review of all plans and specifications, public notice and public comment.  In contrast, the general permit allows the state to grant coverage after the filing of a Notice of Intent and a stormwater pollution prevention plan (SWPPP).   An individual permit can take several months to obtain and is subject to being challenged by third parties.  Notice of Coverage under the CGP, on the other hand, is usually available in thirty days or less with no potential third party appeal.

HBAT'S EIGHT POINT PLAN TO ASSURE COMPLIANCE

The simplicity of the process of the CGP should not shadow the need for detailed planning and implementation of the CGP requirements.  Often the simplicity of filing a single page Notice of Intent lulls the developer into believing that compliance is assured.

With the unprecedented attention now devoted to stormwater enforcement, home builders need to be aware of the most commonly cited violations and take action to assure that those items are buttoned up.

1.    Make sure all contractors are covered by the NOI.  One of the easiest to prevent, but among the most common violation cited is the failure of the developer to require the contractors working on the project to sign off on the NOI.   TDEC considers work being done by the general contractor who has not signed off on the NOI to be working without a permit.   All required signatures should be provided prior to the contractor's initiation of work.
2.    Maintain required documentation on-site.  The CGP requires certain documentation to be maintained on the job site near the construction entrance.  This would include the NOI, the NOC, the SWPPP, inspection reports and a copy of certifications of persons certified by TDEC for erosion control activities.   A rain gauge must also be present.  The NOC must be posted and contact information provided.  For many sites a mailbox is used for these documents.  However, unless properly secured, these can be subject to vandalism.  Consideration should be given to use of a secure device for storage of documents.
3.      Conduct required inspections and properly document them.  The CGP requires every job to be inspected a minimum of twice per week.  This can be accomplished by the general contractor or the subcontractor responsible for the EPSC measures.  In addition, the general contractor may choose to contract inspections separately to avoid any conflicts.  Any of these measures are acceptable.  The EPSC measures must be evaluated and any runoff noted.  The more detailed the inspection report the better for purposes of defending compliance with the CGP.  Under the terms of the CGP repairs must be made within seven days of the observance of a deficiency.  While not required, it is advisable to document the repairs.  Maintain duplicate copies of inspection reports at a separate location in case some are lost are stolen.
4.    Make needed repair to EPSC within seven days of the inspection.   Perfection is not possible.  There will be failures.  The project is judged by how the contractor responds to failures.  Therefore, make sure any necessary repairs are made on a timely basis.
5.    Do not overlook the EP part of the EPSC.  The SWPPP is a detailed plan that shows how the developer plans to carry out proper erosion protection and sediment control.  Sediment control is generally associated with engineered controls, such as silt fence and detention ponds.   The architect designs the sediment controls to meet the two-year, 24-hour storm event.  For 303(d) streams or high quality waters a five-year, 24-hour storm event is the design standard.  In order to prevent excess runoff that would potentially overwhelm the designed structures, vegetation needs to be established as soon as possible through seeding, mulching, seed mat or other measures that provide stabilization for the soil as well as growth of vegetation.  Requirements for temporary stabilization are included in the permit, so that when an area is not being worked, vegetation can be established.
6.    Update the  SWPPP prior to commencing work.  Often the project is designed and bid from plans that may well be more than two years old by the time the job is actually let.  The engineering plans should be reviewed by the Engineer just prior to commencement of construction to take advantage of any changed conditions and new best management practices.
7.    Clearly identify in bid specifications and the contract responsibility for the EPSC.  The CGP requires the owner/developer to be responsible for developing the SWPPP, while typically the general contractor will be responsible for complying with the SWPPP.  In some cases the general contractor may refuse to make changes to the SWPPP when the BMPs were clearly ineffective because the responsibility to make such changes was not clearly identified in the contract.  The failure to make the corrections not only subjects the general contractor to liability but also subjects the developer to liability.  All EPSC requirements should be clearly identified in the contract.
8.    Consider using a Certified Professional in Erosion and Sediment Control (CPESC) or equivalent in advising the developer on compliance with the CGP.  The TDEC Level 1 erosion control course provides only a one day very basic program.  It is effective in training inspectors and others who work on the site, but with the emphasis on compliance, the developer or contractor should contract with a true professional to provide quality control.  Such efforts could include spot checks to see if the erosion control inspections are being properly conducted and the SWPPP is being followed.