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Environmental Issues Demand Diligence
By Geoff Rabinowitz
Due to the current slowdown of Florida’s housing market, it may be tempting for some builder-developers to delete various stormwater line items, such as extra street sweeping or bringing the permit required inspections “in-house.”
Don’t do it. Resist the temptation! Now is the worst time to skimp on environmental compliance. While reducing line-items for environmental compliance may show a quick budget reduction, you are not making a sound financial decision in your company’s future.
The cost-benefit ratio and ultimate risk is too great. Environmental compliance problems can actually be magnified in a time of economic downturn. As the market continues to cool, regulators will have more time on their hands to spend on permits and examine your project’s environmental compliance. Simply stated, the cost of non-compliance far outweighs the cost of compliance.
Thus, now is the perfect time to take a step back and develop a sound plan for dealing with National Pollutant Discharge Elimination System (NPDES) stormwater, sediment, and erosion control issues.
To draw an analogy, if you had a sprained knee and took some aspirin to make the pain go away, the sprained knee would still exist. Deleting storm water budget line items in a vacuum is basically like taking aspirin for a sprained knee; the underlying problem is still there and may become aggravated and more costly if not properly treated initially. A better approach would be to look at the broader spectrum and develop a strategic plan. Approach environmental compliance with the following three ideas in mind:
1. Hire a qualified person. A qualified person hired by a builder to perform inspections is a valuable commodity and falls within the adage: an ounce of prevention is worth a pound of cure. Such an individual’s purpose is to protect the interest of the builder’s financial bottom-line by limiting the builder’s environmental liability and exposure. A qualified person has experience in inspecting and recommending sediment erosion control. Specifically, the person should have a clear understanding of Best Management Practices (BMP), NPDES Stormwater Construction Generic Permit criteria (including performance standards) and the Stormwater Pollution Prevention Plan. The person should be able to grasp multiple environmental rules and have basic wetland identification skills.
2. Environmental compliance is a benefit to the industry and your wallet. If home builders make a concerted effort to comply with the NPDES stormwater permit, the industry as a whole should benefit from a reduction of or at least arguably the need to reduce the severity and complexity of future regulations, including the implementation of Total Maximum Daily Loads (TMDL). But, in order to do this, the industry cannot take a “wait and see” attitude on enforcement in times of economic slow-down.
3. Save your company money in the long run. A truly sound way to save your company money is to maintain a stormwater budget, have a stormwater management expert look at your overall stormwater /sediment-erosion control program, and implement clear and direct behavioral changes across the board. The majority of the money spent on your stormwater budget is for sweeping, BMP replacement and corrective actions. If you can learn how to minimize these risks, your savings should be substantial. This will afford you the advantage of letting the experts handle the administrative portion of your program (inspections, stormwater pollution prevention plan development, etc.) which will in turn better protect you and the entire home building industry. In addition, by maintaining an environmental compliance program, an inherent public relations advantage exists. Don’t let regulators fine you on the back-end; spend a little on the front-end for your financial insurance. It is a win-win for your company, the industry and your customers.
Geoff Rabinowitz is the Vice President of Professional and Consulting Services at theAlpha Environmental Management Corp. Contact
him at 866-707-3480.
National Pollutant Discharge Elimination System
Polluted stormwater runoff is a leading cause of impairment to the nearly 40 percent of surveyed U.S. water bodies which do not meet water quality standards. Over land or via storm sewer systems, polluted runoff is discharged, often untreated, directly into local water bodies. When left uncontrolled, this water pollution can result in the destruction of fish, wildlife, and aquatic life habitats; a loss in aesthetic value; and threats to public health due to contaminated food, drinking water supplies, and recreational waterways.
Mandated by Congress under the Clean Water Act, the NPDES Storm Water Program is a comprehensive two-phased national program for addressing the non-agricultural sources of storm water discharges which adversely affect the quality of our nation's waters. The Program uses the National Pollutant Discharge Elimination System (NPDES) permitting mechanism to require the implementation of controls designed to prevent harmful pollutants from being washed by storm water runoff into local water bodies.
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Phase I
In response to the 1987 Amendments to the Clean Water Act (CWA), the U.S. Environmental Protection Agency (EPA) developed Phase I of the NPDES Storm Water Program in 1990. The Phase I program addressed sources of stormwater runoff that had the greatest potential to negatively impact water quality.
Phase II
The Phase II Final Rule, published in the Federal Register on December 8, 1999, requires NPDES permit coverage for stormwater discharges from: Certain regulated small municipal separate storm sewer systems (MS4s); and Construction activity disturbing between 1 and 5 acres of land.
Note: The builder must file for a permit and is required to complete a SWPPP and complete weekly inspections with related BMPs necessary for compliance.
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Several entities are involved with compliance and enforcement. They include the EPA, State Regulators and Water Management Districts.
Failure to comply may bring about warnings, reminders and penalties. In fact, the EPA may apply penalties up to $32,500 per violation per day with potential for retroactive application.
Most penalties will not be that significant, however, that does not diminish the reality of non-compliance. Increasingly, companies are working through non-compliance issues that not only include the encumbrance of penalties but the cost of time and effort of internal and third parties.
Non-compliance may come in several forms. (i.e. failure to apply for permit, failure to comply with permit instructions, failure to conduct weekly inspections with reports, lack of Best Management Practices ( BMPs), and improper use of BMPs, etc.)
It is not uncommon for Alpha EMC to speak to parties whom "feel no risk" or may be indifferent only to receive a call weeks later hearing of a non-compliance issue.
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A few preventative and proactive steps go a long way in protecting our water and our clients.
A NOI is a Notice of Intent and is basically the permit application required for NPDES.
Generally, a NOI will suffice for the life of the project if for example, a builder both develops land and also constructs homes. It may be advisable for a builder/developer to create separate NOIs or Co-Permittee Agreements if, for example, they are only developing property or only constructing homes. Recall that the NOI usually requires that a SWPPP be created, a permit be filed and compliance with the permit be enacted (this includes inspections and use of BMPs). Alpha EMC prepares packets for our clients for NOIs and NOTs to assist in filing.
The NOT is the Notice of Termination signifying that the construction activity is completed. It illustrates the permittee has achieved final stabilization on all portions of responsible work. A NOT is also advisable when a new operator has assumed control on all areas of the site. An example, as mentioned earlier, would include the development of property that is sold to another group that will perform home construction only. The new operator would then apply for their own NOI.
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As indicated previously, Phase II ushered in requirements whenever one or more acre(s) is disturbed.
The permittee is the responsible party. Therefore, Alpha EMC's counsel is to create an objective program rather than simply passing responsibility to a party to "oversee themselves."
In the development phase, for example, some companies have chosen to place the responsibility for the NOI and inspections on a site contractor. The obvious issue here is "Why?" As the responsible party, it is advisable for the developer to utilize a professional service that works on behalf of the developer with an objective view of erosion control issues.
During the home construction phase, the issues are just as viable. Homeowners are now involved (they have the right to complain to the EPA) and the concern over improper infiltration of the MS4 is heightened.
Therefore, it is highly advisable to place this focus equally on development and home construction where applicable.
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A SWPPP is a Storm Water Pollution Prevention Plan. In most States, it must be developed prior to any ground breaking activity, and is required for both development and residential construction stages. SWPPPs are often required for permitting and the NOI (notice of intent). Many organizations have applied for permits without a SWPPP under the notion that the few paragraphs under the "Erosion Plan" on the construction plans will suffice. When signing the NOI, one is acknowledging creation of a SWPPP in States that require one. SWPPPs contains information on, among other items, vegetation, hazardous materials, endangered species, BMPs, historical data, intended sequence of events, spill prevention program and wetlands. The SWPPP shall be amended whenever there is change in design, construction, operation or maintenance which has a significant effect on the potential for discharge of pollutants to surface waters of the state or a MS4 (Municipal Separate Storm Sewer System).
The SWPPPs are kept on the job site to be referenced and amended as needed by the storm water professional inspector associated with weekly inspections, classification changes and rain events.
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Depending on your state, inspections are usually required once every seven days and within twenty four hours of a rainfall greater than 0.5 inches in a twenty four hour period (blue sky to blue sky).
The inspection requires several points to be monitored, recorded and logged as well as attached to the SWPPP (where required).
In most states, the inspections should be performed by a certified NPDES inspector that is trained and capable of supporting all of the reporting requirements set forth.
A common error in inspections is leaving the work to non-certified or non-specialized entities that are not completely fulfilling all aspect of the inspections. This includes frequency, process, reporting and necessary follow-up.
Alpha EMC, for example, covers every parameter as set forth by State regulators during each inspection while also recording updates from the previous inspection and creating two databases to create a log of activity, corrective action and a record of compliance efforts along with a start/stop log for each individual lot.
With well over several dozen items that must be evaluated, inspections are a critical component to the builder, which places a greater need for the appropriate personnel to support such measures.
A Recent EPA Study illustrated that using over 60,000 construction starts subject to stormwater control regulations, roughly two thirds lacked the necessary permits.
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BMPs are Best Management Practices. They include schedule of activities, prohibition of practices, maintenance procedures and other management practices to prevent or reduce the discharge of pollutants to US waters. BMPs also include treatment requirements, operating procedures and practice to control plant site runoff, spillage, or leaks, sludge or waste disposal, or drainage from raw material storage.
BMPs are required to be identified in the SWPPP when your state requires a SWPPP. Examples include: Silt Fencing, Vegetative Strips, Hydro-seeding, Mulching, etc.
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The days of indifference and lack of enforcement have come to an end. Most companies realize this when they find themselves in non-compliance. Others have "heard the news" and are actively working to create programs.
When considering the scope of the situation, we believe there is an opportunity to maximize effectiveness with minimal strain. The facets of the process include NOIs, SWPPPs, inspections, NOTs, BMPs, compliance, agency interaction, education, program audits, consultation and proper reporting just to name a few.
This is where Alpha EMC brings value to our clients. As a single point of contact for the aforementioned issues, we become your partner in Erosion Control and Stormwater Management.
So, where do we go from here? Put a plan in place.
We are extensively trained in this endeavor and are pleased to create this plan with you. Of course, this is much more than a few simple steps. We strongly believe that a "program" best describes the approach to this arena as we are positioned to keep you abreast of new NPDES regulations, changing processes and new methods of efficiency.
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