Education and enforcement

June 2006 » Feature Articles
Four sediment and erosion control professionals recently accepted invitations from CE News to participate in a roundtable discussion about significant regulatory, enforcement, and technology issues.
Bob Drake

Roundtable participants offer their perspectives on implementing erosion and sediment control

During the recent International Erosion Control Association (IECA) annual convention, four sediment and erosion control professionals accepted invitations from CE News to participate in a roundtable discussion about significant regulatory, enforcement, and technology issues. Following is an abridged version of that discussion.

Drake: From each of your perspectives, what is the top issue or trend impacting the erosion control profession today?

Lawson: NPDES Phase II guidelines are motivating most contractors. The biggest obstacle at this point is the training [so] they understand how BMPs work and how they can adhere to these guidelines.

It’s an educational process.

Austin: The other thing that goes handin- hand with NPDES is enforcement.

There are a lot of public agencies that frankly can’t get everywhere, can’t be on all sites. That’s where the public helps out by making phone calls to a site that might not be in compliance or [when] they see dirt in the street.

Chesson: The underlying problem is resources. Municipalities don’t have the resources to be able to fully implement most of their programs. Charlotte’s an anomaly. You have good resources, but most municipalities don’t. So, the training doesn’t happen, and the enforcement doesn’t happen like it should. Instead of after the fact, it needs to be a before-the-fact training. Some type of program [needs to be] in place to provide those resources.

We’re seeing a trend in [establishing] more utilities and other ways to fund programs.

Gucciardi: One thing I see is that the engineering community often resists new technologies. You have design engineers who aren’t comfortable trying something new and, from the municipal side, our review engineers are sometimes resistant to trying something new without calculations and different things. Sometimes you want to try something a little more dynamic, but it’s very difficult to get a set of plans approved when you can’t get design or review engineers on board.

 

Drake: How can design professionals, through erosion control plans or any other method, get new products and methods implemented? Gucciardi: In Charlotte, we’ve worked with some private firms and [developed] test models and run some tests in some very insensitive areas where, if there was a failure, there wouldn’t be as degrading an environmental impact. We bring our engineers on board, and generally, if it’s a private project, the design engineer will be working hand-in-hand with the manufacturer of that product and the installers.

Austin: The other thing you can do, especially in the rolled erosion control products industry, is ask the manufacturer for its third-party data. Challenge them to send it to you. Scrutinize it. Quiz them.

Understand all the parameters the product was tested under and don’t be afraid to have a manufacturer’s representative of that new technology on site the first day of installation.

That’s going to make everybody comfortable. Pre-construction, have the manufacturer’s rep answer questions [from] the contractor, engineer, and inspector so they know what to look for in a good, successful installation.

Lawson: Manufacturers provide work shops, and IECA chapters hold workshops, inviting municipalities and engineers to come witness these products—how they are installed, what their capabilities are—so they feel more comfortable with the performance [and] how it works to replace traditional methods that they’ve always used.

Austin: That’s a good point. Almost every seminar that’s being given today in the erosion control arena, whether it’s publicly funded or privately funded, usually has a demo or hands-on portion of it so there should be nothing scary when it comes to decision time. Hopefully they’ve seen it in action, especially with video and the Internet. A lot of manufacturers or anybody with a new technology has a video on their website you can watch. You can download the tech reports. It’s hard not to get enough information to feel comfortable.

Drake: Are there any specific gaps that you see in the knowledge base of engineers, contractors, and others who are working in erosion control or who are subject to NPDES regulations?

Chesson: There certainly is a disconnection between the responsible parties on the site and who’s actually installing [erosion control systems] and held responsible. So, training needs to be at all levels so there is not that disconnection. Depending on how a municipality or state handles it, there needs to be a top down ability to regulate the contractor, the person who designed the plan, and the developer, instead of just having the developer [held responsible].

We’re not there yet, in most cases.

Gucciardi: Self reporting—when the contractor or developer, or their representative, does the inspections and fills out the log book for NPDES and also for our ordinance—seems to be where things fall apart a lot.

We’ve had firms coming in from all over the country to do the log books, and we’ve had some new firms pop up in Charlotte. In fact, some of our inspectors left to start their own [firm]. One disconnect I’ve seen is [that] a few national companies have come in and they don’t contact us. They have a standard template and it doesn’t address what we’re looking for. Violations have occurred, and their log books have become an aggravating circumstance. There’s a disconnect too with national companies and local programs because they’re trying to satisfy the federal EPA NPDES, which I think is more broad than [regulations in] some municipalities or some states.

Drake: What value do qualified professional designers provide in the development of sediment and erosion control plans? Lawson: In a word, integrity.

Chesson: Well hopefully, a certified individual (CPESC or CPSWQ) is involved in the process early on. Often, when you review a plan, you see that somebody’s slapped on erosion control at the very end of the project as an afterthought. That’s not the appropriate place for it. It should be a part of the overall planning process for that development.

Certified individuals, as plan designers, get into the process a lot earlier. If they are in a difficult situation, they can use different types of BMPs and know the pool of BMPs they can pull from. There’s a lot of value in having someone who is certified or trained. They don’t even have to be certified as much as they need to be trained in proper erosion and sediment control.

Lawson: That knowledge is a key. Most certified people are knowledgeable about all of the different products that are available and qualify as a BMP. There’s more than one solution in developing an effective erosion and sedimentation plan.

Austin: I break it down into even more basics. We all run across people in our profession who are driven to continue to improve themselves and the work that they do. And there are people [for whom] it’s really just an 8-to-5 [job]. They’re going through the motions. You can really tell a lot about a person’s drive and care to do the best job they possibly can by looking at the kind of credentials [with which] they’ve accelerated their career. Becoming certified or becoming a professional, either stormwater management or erosion control, tells a lot about that individual’s care on the project because they care enough about their own performance that they’re advancing it.

Lawson: They will use more of their expertise as opposed to just pulling a manual off the shelf and saying, "OK, we’re doing it this way." [They] research other options and determine what would be the most effective way to stabilize a particular site.

Drake: Along those same lines, what can be done to ensure that sediment and erosion control plans are not "cookiecutter" type documents? Gucciardi: I see those all the time. I see a lot of plans where erosion control was an afterthought. One of the ways we try to reverse that process is to make them phase the grading and erosion control plans. I’ve seen a lot of plans where the erosion control has to [be installed] at a really early stage of the project because of the drainage and topo of the site—that’s where everything is going to go anyway—so it requires a re-engineering and a phasing of that plan. Secondly, and more importantly, there are a lot of cases where the erosion control, because of the development of the site, just can’t be maintained. With cookie cutter-type plans, people are not reading topo, not making site visits, and just throwing something [together], in some cases to satisfy the client and get something out of their office and to the review agency’s door.

Chesson: It all begins with the municipality and the plan review that’s done. If you have the staff to be able to do a detailed plan review, and they’re well educated in what they’re doing, if you have a good staff internally as a municipality or as a government agency reviewing plans, then you’re not going to have cookie cutter plans because you will have the trained individual looking at the plans to make the decision: Did they do this in 15 minutes and not really think about the project, or did they spend enough time and think about the grading and everything else? Austin: For the city of Charlotte, do you maintain an approved list of consultants that prepare plans that you know historically take the time to make sure that each plan is customized to the job? Gucciardi: No. We don’t have a list of people we trust. Each plan comes in on its own merit. In certain situations, when plans come from certain places, I know I may have to have many meetings with that engineer and help them develop the plan.

In essence, I am developing their erosion control plan for them. It’s not fair to other people, but it’s sometimes the only way that [a] set of plans can be approved.

Chesson: Aren’t there a couple municipalities in North Carolina where you get two plan reviews for one fee and, if you have to submit a third revision, they double the fee? Gucciardi: It’s not that way in Charlotte. Typically we have three reviews.

Chesson: You don’t increase your plans review fee? Gucciardi: No. That’s a good idea though.

Chesson: I think the city of Knoxville does that. They give you one or two reviews for one fee. If they have to resubmit anything else, they double their fees.

You kind of cut down on [the attitude], "Where’s the bar? How much do I have to do to get approved?" It’s very typical for the engineers to try to just do enough to get it approved. So, they’re always looking for that bar.

Lawson: There are always extenuating circumstances on the job site, [such as] limited right-of-ways, that [engineers] may not have considered. A contractor is now faced with a 2:1 slope right in front of a road, and then they don’t know how to stabilize it. A lot of problems occur because of site conditions that do not always show up on a set of plans.

Drake: Are erosion control failures a maintenance issue or an installation issue? Gucciardi: From my perspective, 90 percent of the failures are due to maintenance.

Sometimes it’s due to poor design or improper installation. But the majority of the time it’s not doing the inspections, doing the inspections improperly, and not maintaining things once you do find them. I don’t know how many times someone can drive across the same construction drive, look at the same silt fence, and see the sediment basin next to their job trailer that’s completely full, with rain forecasted, and they’re building the building and then they go home (without addressing the problem).

Austin: You have an entire [safety] culture that was created on construction sites, especially with OSHA. I think what we all strive for is some day to have [a similar] stormwater and erosion control quality culture where people are concerned about a dirty site. They’re concerned about things that just don’t look right, rather than just going home. Rob [Lawson] and I work for manufacturers, and within the plants, safety is so critical. When you go to a construction site, especially one that’s union, safety is the most critical thing. We want to try to get the quality of workmanship and the cleanliness of a project site on par with safety in terms of the culture.

Gucciardi: Interesting you mention that, because a lot of the big construction companies that I have been working with have placed their safety person in charge of their erosion control as well. And I guess it makes sense in that that’s the individual who is responsible for developing and maintaining that culture and putting things in the frontal lobe of all the other employees.

I can think of many firms where that is the case, that individual has a dual function.

Lawson: From my perspective, installation is probably the biggest problem. It’s interesting to hear about the maintenance because that makes a lot of sense. The other problem is the people who design BMPs either design them for a required 50- or 100-year storm event and lately we’ve been getting 500-year storm events. So, whose fault is it? You’re required to design for a 100-year, but you just witnessed a much larger storm than that. From the contractors perspective, they say, "Well, I had to bid this project so slim that I didn’t include all the specified measures, hoping I could get by without using them, just so I could make money on this project."

Drake: To go back to the safety issue for just a minute, everyone on site has some personal interest in their own safety and the safety of coworkers. Erosion control is not quite the same deal. Does it take monetary penalties to really bring that to workers’ attention?

Chesson: Penalties, I don’t think, are the way to go. A more effective way to handle a violation or non-compliance is to stop work on the job. Find the tools to stop the work.

Pull permits. You can’t do that from the state level as easily as you can at the municipal level. But [for example], Tennessee only has $50 a day that they can fine down to the municipal level. That’s ridiculous. The state of North Carolina just increased its fines, didn’t they? Gucciardi: In 2002, [fines] went from $500 a day to $5,000 a day per violation.

One site I fined $45,000 a day. I kept having the same problems with this builder all over the place. It just got to the point where that was the only thing we could do.

We can’t stop jobs. It becomes a really long, drawn-out process because we have to go to the courthouse, get a cease and desist [order], and everything else. I guess because of our state legislature, we’re not allowed to do a stop work order, but we can put a hold on a project. I’ve called our building standards folks and said, "No more inspections." That clause is in the ordinance.

That, in essence, stops a job. They can keep building to a certain point, then that’s it.

Chesson: We find that in a number of instances, fines are a cost of doing business.

Some larger developers work that into their overall budget [because they] know they’re going to get fined at some point. Having some way locally to hit them makes a bigger impact—pulling permits, not allowing any more inspections, not hooking them up to the water system, stopping the certificate of occupancy from being issued.

Gucciardi: No more plan reviews within the office until they come into compliance.

Anything they have in the office that is under review is frozen. Do different things like that.

Drake: One final question. Is there measurable proof that NPDES regulations are improving water and air quality?

Gucciardi: For the city of Charlotte, it certainly precipitated some change. In anticipation of the Phase II regulations, we reviewed our ordinance to see if there were any deficiencies. We did this a year before the initiation date of the NPDES Phase II.

We wrote into our ordinance some of the provisions that we anticipated as part of NPDES Phase II and brought the development community in line with the requirements of that permit. It certainly did help that we do inspections with the EPA as part of a joint initiative. We didn’t have a lot of people dinged with violations as a result of [Phase II]. Record keeping was better, and [there were] fewer violations. For our area (Charlotte), [Phase II] definitely helped out a lot. Bringing the threshold for reporting from 5 acres to 1 [acre] was a huge deal, and that’s where it needed to be. But like any legislation, it takes baby steps.

Chesson: The impaired streams list is where the rubber hits the road. It’s going to take a while before we can really see a change in streams. Some states are really ahead of the curve, and there are a lot that are way behind the curve in implementing Phase II. It’s still going to take some time.

Certainly, everybody’s awareness is raised.

With these conferences and all the good information that’s out there—the magazines and technical sessions—awareness of the problems and the tools that you can use to cure those problems is certainly raised.

For all the other minimum controls under Phase II, I think it’s going to take us a while to measure them.

Lawson: The seeds have been planted.

Everybody knows it’s going to happen, so they’re preparing themselves. More progressive states or localities will go ahead and start implementing the measures to stay ahead of the curve. Others will lag behind and wait until they absolutely have to do something. But, I can see some measurable success in the way people think and in the way they are doing stormwater permitting now as opposed to in the past when it was an afterthought. But, as Beth [Chesson] mentioned, stream clarity and purity is where the rubber hits the road. That’s where you can measure whether what we’re doing is the right thing.

Chesson: Certainly, the desire for all of us as stormwater and erosion control professionals is to have fewer streams on the impaired list, and not have more TMDLs imposed.

Austin: It always is harder to change the culture that exists. The long-term culture change of somebody working on a construction site—the way that they approach it and the way that they look at the vegetation, the trees, the soil, the water, the contours, the surrounding area—that’s going to take years. You can’t really measure that.

Lawson: I think the mentality is reaching the contractor’s level. Before they said, "What I’m doing here doesn’t amount to anything." However, in talking to them, they all want clean water too. They enjoy fishing and swimming, and they want to see the positive effects and preserve these same things for their children. So, you’re starting to see this awareness more than in the past. I definitely see a change.


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