Contractors try various devices to control sediment and avoid costly penalties.

By Bill Tice

Retail giant Wal-Mart agreed to pay a record-setting $3.1 million civil penalty in early May for Clean Water Act violations at a number of its store construction sites across the United States. In addition to the fine, the discount retailer also agreed to implement improved control measures at its construction sites, which should result in reduced stormwater runoff.

The settlement, which was announced by the Department of Justice and EPA, along with the US Attorney's Office for the District of Delaware and the states of Utah and Tennessee, has focused attention on sediment control, bringing it to the forefront of construction site environmental planning. Wal-Mart is not only the largest retailer in the country, but also one of the largest commercial developers in the United States, building in excess of 200 stores every year, including outlets bearing the brand names of Wal-Mart Stores, Wal-Mart Supercenters, and Sam's Club.

According to EPA, the complaint filed against Wal-Mart cited violations at 24 sites in nine states. These included allegations of failing to obtain a permit before starting construction, failing to develop a plan to control polluted runoff from the construction site, failing to adequately install sediment and erosion controls on the sites, and failing to self-inspect sites and prevent discharges of sediments to sensitive ecosystems.

Under the terms of the settlement, Wal-Mart is required to comply with stormwater permitting requirements and to implement an aggressive compliance program using qualified personnel to oversee construction, conduct training, make frequent inspections, report to EPA, and take quick corrective actions.

In a press release following the settlement, Thomas V. Skinner, acting assistant administrator of EPA's Office of Enforcement and Compliance Assurance, stated, "Runoff from construction sites is a primary contributor to the impairment of water quality in the nation. EPA is vigorously enforcing federal regulations to help reduce this problem." He also complimented Wal-Mart, saying, "I want to commend Wal-Mart for negotiating a settlement that will be good for the environment and good for business." Wal-Mart will spend an additional $250,000 on an environmental project that is designed to protect a sensitive wetland area or a waterway in one of the nine affected states, which are California, Colorado, Delaware, Michigan, New Jersey, South Dakota, Tennessee, Texas, and Utah.

The EPA press release noted that reducing sediment-laden runoff from construction sites can be achieved with relatively simple measures, but stressed that it requires vigilance on the part of developers and contractors throughout the construction process. The release also quoted Assistant Attorney General Thomas L. Sansonetti of the Justice Department's Environment and Natural Resources Division as saying the settlement "is a strong signal of this administration's commitment to increased enforcement of our nation's environmental laws and regulations."

But not all cases of Clean Water Act violations will receive the kind of media attention the Wal-Mart case garnered, and the penalties will not be as steep. Even under the latest and more stringent National Pollutant Discharge Elimination System (NPDES) Phase II regulations, which were brought into effect in March 2003, many violations are corrected without penalties being levied on the developer, as local authorities in most jurisdictions try to work with developers and contractors to ensure compliance is achieved under Phase II rules and the stormwater pollution prevention plans (SWPPPs) that are implemented as part of the NPDES permit issued for the job site.

"We really get a lot of cooperation from developers and contractors in terms of meeting the requirements of permits," notes Marina Giggleman, the stormwater program coordinator for the city of Carrollton, a suburb of Dallas, TX. Carrollton follows the guidelines set out by the Texas Pollutant Discharge Elimination System (TPDES), which essentially parallels the national program but is administered by the Texas Commission on Environmental Quality (TCEQ). Giggleman says it is important to build a working rapport with developers and contractors, particularly in such small towns as Carrollton, because local governments don't have the funding to implement large-scale enforcement programs.

"The economy has not been very good here, and for us to implement a more stringent inspection program would cost a lot of money," adds Giggleman. "Some cities have a storm drainage fee, but we do not have this in Carrollton, and we probably won't get the residents to approve a tax increase to implement a larger inspection program. I see this as the biggest obstacle we have. If we would have more funding, then we could hire more people, but here in Carrollton, I am the only staff member in the stormwater program."

Despite the fact that Giggleman doesn't have a large budget to work with, she gets around the staff shortage by relying on help from other departments, particularly the city's Building Inspection and Engineering staff. These departments issue the building permits and complete inspections for other stages of the building project, such as electrical and plumbing, along with general site inspections.

"The other inspectors will also take a look at the stormwater system, and will alert me if there is a problem," notes Giggleman. "If the developers are not in compliance for the stormwater systems, all future inspections will be stopped until the site is in compliance. This is a great incentive for developers to fix any stormwater problems, as in order for them to finish the construction project and get paid, they need to have the inspections completed."

Gutterbuddy in place at a curb inlet

Giggleman says municipalities in Texas can fine developers up to a maximum of $2,000 per day for noncompliance with the TPDES regulations, and fines levied by TCEQ can be even higher, but in some cases it is not enough incentive for companies to comply.

"Sometimes the fine is just not enough, as it can cost developers substantially more than the daily fine to not be building. In a case like this, if they are not getting any of their inspections, they have to shut down and that forces them into compliance fairly quickly."

Giggleman is quick to point out that trouble cases are the exception rather than the norm. She says in most cases, a warning is all that is required to have a stormwater problem corrected. "Luckily, 95% of the time, a warning works and the developer will fall into compliance. On occasion, we have had to go to court, and so far, we have won every case. For us, the cherry on the ice cream is that the developers can finish construction in a profitable time frame if they meet the city environmental ordinances. They know this is the case and will work with us to stay in compliance, even though we don't have a huge staff to monitor every job."

As far as how the developers and contractors meet permit requirements, Giggleman says her department will guide them, but won't dictate what products they use for inlet protection or silt barriers.

"We used to see a lot of hay bales being used, and we don't prohibit their use, or the use of any other type of barrier, but when we review plans, we often request that they use other products. The products we prefer are the wire frames with silt fabric anchored on both sides with sandbags or gravel. We also like the products that have a compost material stuffed inside of a mesh bag, as this works very well for filtering the water, and when the project is completed, they can open up the bags and use the mulch to aid in the growth of vegetation."

Bob Adair, a managing partner at Houston, TX­based Construction EcoServices LLC, has built a business around staying on top of the NPDES and the SWPPP rules and regulations. Adair's company provides turnkey solutions for developers and contractors, eliminating the day-to-day headaches associated with staying in compliance.

"We write SWPPPs, we implement them with innovative best management practices [BMPs], we do all of the permit filing, we complete weekly inspections and make modifications as required, we handle the notice of termination, and we close down the project when the job is done," explains Adair. "By managing all of these tasks, we can help our clients save money while meeting all regulatory requirements, and we can take this burden off the developer or contractor as they are busy doing what they're in business to do. The superintendent of the project is in charge of getting the building completed on time and under budget and doesn't really have the time or focus to keep up with the SWPPP. Also, the interpretation of the rules within the compliance community can change along the way, and that makes it difficult for people who are not involved with it every day to stay on top of what's important."

For Construction EcoServices, the introduction of NPDES Phase II—or in the case of most of Adair's clients, TPDES Phase II—has meant an increase in business, especially with the newer regulations affecting construction projects of 1 to 5 acres. Under the Phase I regulations, an NPDES or TPDES permit was required only for projects over 5 acres.

"With the Phase II regulations coming into place it has definitely put more of the developers and contractors, and many of our clients, in the situation where they must be in compliance," notes Adair. "Overall, I think the introduction of Phase II has increased awareness and compliance across the board, just because so many more people are now exposed to the regulations than before. In the past, you had developers and contractors building gas stations and Burger Kings who never built a project that was over 5 acres, as these smaller sites were their primary business."

For these small-site developers that now must adhere to the Phase II regulations, Adair says they "just have to realize that it is a cost of doing business, and if they want to stay in business, they don't have a choice in the matter." Although, like Giggleman, Adair says in most cases inspectors will try to work with the developers on compliance before implementing fines or shutting them down.

"Here in the Metro Houston area, we have a high level of enforcement activity, and that actually helps companies stay in compliance. I would have to say the inspectors in this area are all very eager to encourage voluntary compliance and will work with the developers and contractors. I would characterize them as firm but fair. They give people a chance to fix things before they implement fines or, even worse, shut them down, which can be a consequence of not complying."

To help clients stay in compliance, Adair says his company is constantly looking at new BMPs, but in most cases the company sticks with what has proven to be a winning formula. "The whole purpose of these regulations is to keep silt, sediment, and other pollutants out of the storm drain systems, and that means inlet protection is one of the most critical components of any SWPPP implementation. We look at new BMP products in terms of what will provide the highest compliance, be the most cost-effective, and minimize the need for maintenance. For those reasons, we use the Siltsack and the Gutterbuddy from ACF Environmental in Richmond, Virginia, almost exclusively."

Adair says he uses the Siltsack in place of the more traditional silt fence for stage-one inlet protection applications, and both the Siltsack and the Gutterbuddy once the paving on a building site is installed (stage two).

"Siltsack is all we use for area inlet protection, but with the curb inlets, we have to deal with two different types of applications—with and without a grate. If there is a grate, we simply remove it, drop in the specially modified curb-inlet Siltsack, and put the grate back in place. This is less time-consuming and less expensive than building a silt fence that will undoubtedly be knocked down many times during construction anyway. And as for ongoing maintenance, the Siltsack has built-in lifting straps so you can just put a couple of pieces of rebar through the straps to lift it out, clean it, and then put it back in."

For curb inlets, where there is no grate, Construction EcoServices uses the Gutterbuddy, a 9-inch-diameter log made from recycled material. "This allows for the flow of water while capturing the sediment," notes Adair. "A couple of overflow bypass holes are built in to help avoid flooding during very heavy rains."

Even with these products, Adair stresses that regular maintenance is one of the keys to avoiding problems. "If you don't take care of what you have, then you expose yourself to problems. In Texas, we can choose to do an inspection every 14 days plus a post-rain inspection, or we can choose to inspect on a seven-day cycle. We choose the seven-day cycle because it allows us to stay on top of things, so you never really get to a point where you risk getting out of compliance."

Scott Mallory of Texas Power Mulch, another company operating in the Houston area, also has found a formula that works. "We use the Filtrexx line of products because they work for every application," he says. "We use the 8-inch Filtersoxx and fill it with the Filtrexx filter media, which is a specially made composted product. We blow the filler into the sock and then cut it to fit the various lengths of the inlets."

Mallory's crews use wire mesh that is also custom-fit to the inlet, in conjunction with the Filtersoxx. The mesh acts as a trash guard and gives the crews something to attach the sock to using zip ties. "We have had outstanding results from using this technique, and it will work for open- or closed-grate application."

As for maintenance, Mallory notes, "We use these products as a temporary measure, primarily in new home subdivisions. Once the project is completed, the socks and mesh are removed, but if the streets are being swept prior to the completion of the project, the street sweeper just needs to pick up the sock and put it on the curb, and then replace it in the opening once they are finished. As an added bonus, the socks are very durable. If a truck runs over a sandbag, which is very common on a construction site, it will just tear. The socks will hold up to this type of abuse."

In terms of the new TPDES Phase II regulations, Mallory says they haven't really had much of an effect on his company, with the exception that developers are taking more steps to stay in compliance. "I see more environmental awareness out there, and that has helped increase our business. Because the socks are filled with composted products, they are an environmentally friendly solution that our customers like to use. Filtrexx recently began a voluntary testing process that documents specific removal efficiencies like TSS [total suspended solids], nutrients, and hydrocarbons. On some test results involving filter media, a 90%-plus removal rate of oil has been documented, and this promises to be a valuable tool for our customers that need to target various pollutants."

Raymond Morgan, who runs Morgan Erosion Control in Henry County, GA, is a firm believer in doing things right the first time. And when it comes to keeping mud and sediment out of the creeks, he is vigilant about the methods he uses. "I take my job very seriously," says Morgan. "I have small children so I want to do the best job I can to protect the ecosystem for future generations."

Morgan works mainly with residential developers on sites from a quarter-acre to 300 acres. Henry County, which is just south of Atlanta, has experienced huge growth since the 1996 Summer Olympics were held in Georgia's largest city. Morgan says, "You can't drive a mile in any direction without seeing a major development under construction." One of his tasks is to grow grass in these newly developed areas, which he says he "can do in the palm of your hand if you stand still long enough." But while the site is being developed and before the vegetation takes care of the runoff problems, Morgan handles the inlet protection. On a recent 190-acre job site, Morgan's crews installed 28,000 linear feet of silt fence along the curb, with a 5-foot-tall stake driven 2.5 feet into the ground every 4 feet.

He also uses coir logs from RoLanka International in Stockbridge, GA. "We call these a Opig in a blanket,' and they are one of the least expensive ways to prevent silt from reaching the creeks. On one job we installed 73 of them, and when they get clogged up with mud, we simply pull them up, let them dry out, beat them with a shovel, and put them back in place."

Morgan knows what combination of methods his crews will use before the job begins. The first order of business is to have an onsite preconstruction meeting with the local inspector in attendance. "We plan everything out in advance. The water has to go somewhere, so before the curbs and stormwater systems are installed, we put in a temporary settlement pond so that we can filter the runoff before it reaches the creeks. That settlement pond, combined with the correct use and maintenance of the silt fences and the Opig in a blanket,' keeps us out of trouble, and we want to stay out of trouble. If my name is going on a job, it is going to be done right."

For Buzz Kuntz of Kuntz Construction LLC in the Columbus, OH, suburb of Pickerington, the call for maintenance of inlet protection devices or stormwater systems often comes late in the game. Kuntz, who is a hydroseeding contractor and an erosion control specialist, has built a substantial business in maintaining water runoff solutions on residential construction sites.

"Regular inspections will keep organizations out of trouble, but in a lot of cases, we get called in after whatever inlet protection device they used has been under water for some time, or after the individual has received a letter for the authorities saying something has to be corrected," explains Kuntz. "In many cases, the inlet protection devices are sedimented over with a foot of dirt and the bags are full. We do what we can to clean them and reuse them, but our advice to anyone working in the industry would be to have a regular maintenance schedule in place from the start."

When Kuntz is involved from the beginning of a project, he likes to use the Dandy Bag, Beaver Dam, and Dandy Pop products from Westerville, OH­based Dandy Products. Dandy Bags are designed for use with flat (including round) and mountable curb grates, Beaver Dams offer protection at curb and gutter inlets, and the Dandy Pop is designed to provide inlet protection when used with a field grate and when high visibility is required.

"The Dandy products seem to be used a lot in the Ohio area," notes Kuntz. "We find they are very easy to install, easy to maintain, and in some cases can be reused when the project is finished."

Kuntz says since the implementation of the NPDES Phase II rules he has seen more activity from inspectors and customers, but he can't put a specific number on the increase. "There have definitely been more inspections and we are seeing an increase in business from the new regulations, but I still think it comes back to communications. If I get a call from a customer saying he has a problem that the inspector wants corrected, the first thing I do is call that inspector, with my customer's permission, and tell him what my plan is and what my time frame is. If they know you are on top of the situation, they are much happier and much easier to work with."

In Brevard County, FL, Mike Powers sees a lot of areas that were developed before current stormwater regulations were in place. Powers is an engineer for the County Stormwater Utility and oversees a program to retrofit these areas.

"Our first choice is to install settlement ponds, but in some cases, we either don't have the space for this solution or we can't afford to purchase the land for a settlement pond," notes Powers. "If we can't install a pond, then we like to use baffle boxes before the stormwater runoff is discharged into the St. Johns River or Indian River Lagoon."

Powers says the county, which is home to approximately 500,000 people, also uses inlet baskets or catch basin inserts, which collect materials after they have gone into the inlet but before they go out through the pipe. The settlement ponds, baffle boxes, and inlet baskets are all permanent BMPs, but for temporary measures the county also uses fabric-covered booms, silt fences, and straw bales for collecting oil, grease, and silt before they reach the inlet. Powers estimates the county has approximately 30 baffle boxes in use and approximately 250 inlet baskets, purchased from a number of sources, including Suntree Technologies Inc., a local company in Cape Canaveral, FL, that manufactures a number of stormwater-related BMPs. "We have done a lot of studies, and we have found these products to be cost-effective while minimizing head loss, which is very important to us as the topography here is so flat."

Powers says the county's location in east Florida, which includes the St. Johns River and the Indian River Lagoon, makes water-quality issues an important priority for local residents. He also adds that the county encourages this public involvement. "We see a lot of concerns here about water quality because the river and the lagoon are both very important to county residents for boating, fishing, and other recreational activities. We have a full-time public outreach person in our department who educates the public on water-quality issues, and we set up displays at community events, we do presentations at the schools and to homeowner associations, and we get involved in other programs such as wetland plantings."

Southland Construction Inc. is a general construction contractor with approximately 180 employees. The company, which is based about 15 miles north of Orlando in Apopka, FL, builds fast-food restaurants and bridges and does a large amount of government work, including road widening and road construction.

According to Tim Bayer, a project manager for Southland, the company uses many of the more traditional temporary methods of inlet protection, such as silt fences, hay bales, and fabric positioned over the inlets. A couple of years ago he started experimenting with Silt-Saver products from Conyers, GA­based Silt-Saver Inc. "We have a lot of turbidity problems here, so we started looking at other options. We specifically purchased the Silt-Saver for overflow in containment ponds, as they drain the water while collecting the silt."

The Silt-Saver device consists of a rigid, circular frame supporting a geotextile fabric filter and fits over a sewer or drain opening. The basic principle is to collect silt while it is still above ground. The rigid frame gives the device the strength to hold up under the pressures of water, silt, dirt, and mud, and the filter provides the capability to flow water through and capture the silt. Bayer says the company has since purchased a number of the devices and uses them where needed and where they fit the existing openings. Because they are a temporary measure for use during construction, they can also be hosed off and reused for future projects, which makes them cost-effective.

For Southland, the Silt-Saver and other inlet protection devices are methods they use to help meet the permitting requirements of the NPDES regulations. Bayer says he doesn't expect things will change much for his company now that Phase II is in effect. "I am not anticipating a lot of changes. The NPDES permitting regulations have made everyone much more aware of how construction activities effect the environment, but we were already getting permits for all of our jobs, even the ones under 5 acres."

As EPA suggested in its news release about the Wal-Mart settlement, reducing sediment-laden runoff can be achieved through relatively simple measures. There is certainly no shortage of products on the market to help companies stay in compliance with regulations, and in many cases, the authorities have shown they are willing to work hand-in-hand with developers and contractors to make things work.

Author Bill Tice is based in Blaine, WA.

EC - September October 2004