Sticking to the Plan

All construction projects that disturb more than one acre of land must comply with federal and state regulations regarding storm-water management.

When it comes to storm-water compliance, the Environmental Protection Agency (EPA) doesn’t fool around. In 2008, the agency, whose 2009 plan included its largest enforcement budget in history, reached a consent decree with The Home Depot whereby the home-improvement chain settled on a $1.3 million penalty and the implementation of a comprehensive, corporate-wide program to prevent storm-water pollution at each new store it builds.

Under the settlement, which resolved alleged violations discovered at more than 30 construction sites in 28 states where new Home Depot stores were being built, the chain must develop improved pollution-prevention plans for each site, increase site inspections and promptly correct any problems at its sites. It also must implement a management and internal reporting system to improve oversight of on-the-ground operations.

A similar consent decree was reached with Wal-Mart Stores in 2005, under which the company established a comprehensive storm-water compliance plan and paid a fine of more than $3 million.

The high-profile nature of the retail industry makes it vulnerable to being singled out. In a document posted on the EPA’s site, the agency stated that during 2008-2010, it will focus on three main areas of its storm-water program, with one of those areas being big-box construction ( fy2008prioritycwastorm.pdf ). In fact, all construction projects that disturb more than one acre of land must comply with federal and state regulations regarding storm-water management.

Specifically, site owners or managers must obtain necessary storm-water permits before the start of construction, develop a storm-water pollution prevention plan (SWPPP) for the site and have the documents posted at the job site. (For information on how to develop a SWPPP, see

“In order to comply with their permits, the site operator must be ready, willing and able to prove they are in compliance,” says Alice Reimer, president of Evoco Inc., a provider of project- and program-management software for the retail, restaurant and development industries. “This requires not just having a storm-water management plan, but also proof that they are managing against that plan by regularly inspecting their sites, reporting any problems and resolving them in a timely manner. This can be a daunting task for many companies with regional or national build programs, as regulations can vary by state.”

Failure to comply with storm-water regulations puts a company at risk for significant daily fines, site cleanup costs and project delays. Habitual offenders or companies targeted by the EPA or state agencies may also be subject to a consent decree (as in the cases mentioned above), which legally binds the company to specific resolutions that could include multimillion-dollar penalties.

Common Problems

The following is a list of the most common compliance problems during inspection as reported in the Environmental Protection Agency publication, “Developing Your Stormwater Pollution Prevention Plan: A Guide for Construction Sites”:

Not using phased grading or providing temporary or permanent cover (i.e., soil stabilization);

No sediment controls on site;

No sediment control for temporary stockpiles;

No inlet protection;

No BMPs (best management practices) to minimize vehicle tracking onto the road;

Improper solid-waste or hazardous-waste management;

Dewatering and other pollutant discharges at the construction site;

Poorly managed washouts;

Inadequate BMP maintenance; and

Inadequate documentation or training. Failing to develop a SWPPP (storm-water pollution prevention plan), along with failing to keep the SWPPP up to date or on site, are permit violations. SWPPP documentation, such as a copy of the Notice of Intent (NOI), inspection reports and updates to SWPPP should be kept on site. And personnel working on site should be trained on the basics of storm-water pollution prevention.

Many owners and developers believe that the responsibility for compliance can be delegated to their general contractor or engineer. But that is not strictly true, according to Reimer.

“It is the responsibility of the site operator—which could be the retailer owner, developer or GC [general contractor], depending on the state—to ensure each site has a comprehensive, monitored and maintained plan,” she explained. “And it’s the site owner that faces the penalties of noncompliance. As an owner, be sure your site operators are compliant to avoid the risk of project delays, or worse.”

In a recent trend, some retailers are now using technology to manage their storm-water programs, and to help them get—and stay—in compliance.

Online storm-water management systems, according to Reimer, help owners and developers better manage the voluminous paperwork associated with their storm-water programs, allow inspection data to be captured real time in the field (electronically), and provide a central database of SWPPP documents that all parties can access at any time, and from anywhere. They also allow for the continual back-up of records (related documents are required to be kept for three or more years after construction is completed).

“A key advantage of an online system is that it defines a consistent process for all parties to follow, which means that everyone understands their role, and their compliance with the process can be monitored,” Reimer added. “Equally important, online systems help ensure adequate visibility into any issues that require attention, or have been left unresolved, which dramatically reduces your compliance risk.”

Online systems can also ensure long-term auditability and accountability. Some online systems—including Evoco’s storm-water Compliance solution—allow site superintendents to capture signatures on site-inspection forms electronically. This ensures that the owner knows who inspected which site and can retain that information in a long-term archive for future reference—long after the construction is complete.

“Online systems dramatically improve visibility, help reduce administrative overhead and support owners and developers in better managing the risks associated with storm-water compliance,” Reimer said.

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