2010 Fort Carson Sustainability Award

“Upon its inception in 2004, Stormwater Risk Management (SRM) dedicated itself to becoming the most informed and credible National Pollutant Discharge Elimination System ( NPDES) Permit resource for contractors, developers and regulators. SRM’s technical guidance, expertise and willingness to provide assistance to numerous entities at Fort Carson is exceptionally noteworthy. They have been fundamental in helping innovative partnerships at Fort Carson interpret the Clean Water Act, meet regulatory requirements and protect the environment while still supporting training of our soldiers. SRM has provided much needed technical assistance, training, and guidance to the US Army Corps of Engineers, construction site operators and especially the Directorate of Public Works – Environmental Division. With limited resources, SRM has worked with project managers in developing efficient on-site stormwater management systems. SRM’s detailed inspections and professional interaction with participants in these partnerships has supported Fort Carson’s Sustainable Development goals and initiatives.”

Colonel Robert F. McLaughlin (left) presented the 2010 Sustainability Award to SRM (Bill Robinson center; Rich Jackson right)

Research the history of the EPA’s Construction & Development ELG Final Rule from December 1, 2009. Go to ELG information on EPA website

In 1972 the United States Congress amended the Clean Water Act (CWA) to prohibit the discharge of any pollutant to the waters of the United States from a point source unless the discharge was authorized by a National Pollutant Discharge Elimination System (NPDES) permit. The NPDES program is designed to track point sources and requires the implementation of controls necessary to minimize discharge of pollutants. Initial efforts to improve water quality under the NPDES program primarily focused on reducing pollutants in industrial process wastewater and municipal sewage.

As pollution control measures for these point sources were implemented and refined, it became increasingly evident that more diffuse sources of water pollution were also significant causes of water quality impairment. Specifically, storm water runoff from urbanized areas and construction sites was found to be a major cause of water quality impairments that led to reduced beneficial use of our nation’s waters. In 1987, Congress amended the CWA to require implementation, in two phases, of a comprehensive national program for addressing storm water discharges in urbanized areas and on construction sites. The first phase, implemented in 1990, was directed at large construction sites over 5 acres and the second phase, implemented in 1998, included construction sites over one acre in size.

Numerous studies and assessments were conducted by both government and private industry which led to the conclusion that storm water runoff from lands modified by human activities can harm surface water resources by changing natural hydrologic patterns, accelerating stream flows, and elevating pollutant concentrations and loadings. These studies concluded that storm water runoff often contains or mobilizes high levels of contaminants, such as sediment, suspended solids, nutrients (such as nitrogen and phosphorus), heavy metals and other toxic pollutants and floatables. Uncontrolled storm water discharges from areas of urban development and construction activity were determined to negatively impact receiving waters by changing the physical, biological and chemical composition of the water.

Current reality:

Although is has been the law of the land since 1990, many in the construction and property development industries have been slow to accept the NPDES storm water requirements and compliance with the regulations has been extremely low. The EPA estimates that up to fifty percent of construction projects that should have NPDES permit coverage do not. Of those that do acquire the required permits, less than one-third meet the compliance requirements. As a result, the EPA has been steadily shifting attention and resources to increased enforcement activities and to innovative approaches to improve NPDES storm water permit compliance.

In its most recent public policy declarations, the EPA has begun to set more defined and targeted enforcement goals for states such as Colorado that have NPDES storm water enforcement authority. States, in turn, are pushing enforcement requirements down to local municipalities (MS4s). MS4s in Colorado will be expected, in the near future, to increase their enforcement of storm water permit compliance standards or face punitive action from the state. MS4 enforcement strategies for storm water permit non-compliance in many parts of the nation already include delays in building permit issuance, withholding of inspection services, red-tagging of projects, and monetary fines. It is reasonable to expect that implementation of these types of strategies at the local level will only increase as more pressure is applied by the states in response to the EPA’s expectations.

Private citizens and citizen groups are taking action as well. The CWA empowers citizens of the United States to not only sue polluters of the nation’s waters but to file suit against those regulatory agencies that are tasked with ensuring compliance. No one is exempt from the risk of a successful and costly lawsuit if they are found to be responsible for polluting the nation’s waters. The public’s sentiments are turning increasingly “green” as natural resources such as fresh water become scarcer in many parts of the country and this further emboldens regulators to take more dramatic steps to enforce the current regulations.

The future looks bleak for organizations that continue to ignore the current NPDES storm water permit requirements. According to its website, the EPA levied over $160 million in storm water-related fines in 2006. This is in addition to state-level fines. Since 2000, there has been a steady increase in attention paid to storm water quality by the EPA and all indications are that this trend will continue at all levels of the regulatory system.

While enforcement continues to increase, however, the EPA and many states are also looking into innovative ways to support NPDES storm water compliance through innovative means. Public and private partnership approaches such as the Colorado Stormwater Excellence Program (CSEP) are proving to be very cost-effective ways for regulators to increase their compliance assistance efforts and document real compliance improvements with minimal expenditure of public resources. The CSEP is nationally recognized for its effectiveness in helping storm water permit holders dramatically improve compliance through its standardized Environmental Management System based approach.

Storm Water Compliance Benefits:

Aside from the obvious negative consequences of regulatory non-compliance such as damage to the environment, monetary fines and lawsuits, restitution and reclamation costs, damaged reputations, etc., there can be many positive outcomes when successful compliance efforts are embraced and integrated into the culture of an organization. When integrated thoughtfully and properly, the benefits of regulatory compliance should include:

• Protection of the environment
• Profitability (storm water programs can and should be a profit center)
• Reduced BMP cost through proper pre-planning
• Beneficial regulatory relationships and partnerships
• Industry leadership opportunities and recognition
• Competitive advantage on environmentally sensitive projects
• Enhanced reputation and public image
• Positive and fully documented environmental track record
• Reduced regulatory enforcement risks
• Reduced risk of lawsuits
• Pride in company’s performance

Storm water permit compliance is the law and has been for seventeen years. Enforcement was not very stringent until 2002 and many in the building industry were lulled into a sense of complacency. There will always be those that continue to ignore the regulations, however, with the increased attention on water quality concerns in our nation and the corresponding increase in enforcement, it is just a matter of time before the playing field will be leveled for those that choose to take a leadership role in voluntary compliance.

It will be interesting to see how this trash TMDL will be implemented and what effect, if any, it will have on NPDES Construction General Permit (CGP) holders. Solid waste and trash are common pollutants on construction sites that must be controlled under the existing CGP structure. The CGP also places responsibility on applicants to document in the SWPPP the steps taken to investigate potential TMDLs that could apply to the project being built. Once aware of the limits, CGP applicants must take any applicable TMDLs into account in the development of the SWPPP.

Read the attached EPA notice and stay tuned as we discover what it actually means to the construction industry.

For example, it appears the EPA is preparing to apply significant federal pressure, if required, to States that fail to provide adequate assurances that they are achieving TMDL pollution reductions for nitrogen, phosphates and sediment within the tributaries to the CBW. For instance, to meet TMDL requirements for sediment for the entire CBW, sediment discharge reductions must be achieved per the state-by-state TMDL allocations, even in currently unregulated sectors such as farming. If States, through their individual Watershed Improvement Plans (WIP), can not provide adequate assurances to the EPA that currently un-regulated sources of sediment discharges are being properly reduced, then it appears the EPA has the authority to shift the pollution reduction burden to currently regulated sectors, such as construction, under the NPDES regulations.

Exactly how shifting of the pollution burden to currently regulated industry sectors will occur is not yet known, but will be determined based on the final WIPs that each state must have completed and submitted to the EPA by November 9, 2010. By December 31,2010, the EPA will finalize the CBW TMDL.

Read the EPA’s Executive Summary at the link below to better understand how they expect to enforce the CBW TMDL. This is a new regulatory approach for construction that will add even more uncertainty (risk) to an already confusing regulation for builders and State and local regulators

Executive Summary

U.S. EPA Administrator Jackson Takes New Steps to Improve Water Quality

Release date: 07/06/2009

Contact Information: Deb Berlin, berlin.deb@epa.gov, 202-564-4914, 202-564-4355

WASHINGTON – The U.S. Environmental Protection Agency has made available comprehensive reports and data on water enforcement in all 50 states. This is part of Administrator Lisa P. Jackson’s larger effort by to enhance transparency, promote the public’s right to know about water quality and provide information on EPA’s actions to protect water under the Clean Water Act.

In a memorandum issued last Thursday, Administrator Jackson directed EPA’s Office of Enforcement and Compliance Assurance (OECA) to develop an action plan to enhance public transparency regarding clean water enforcement. In the memo, she also calls for stronger enforcement performance at federal and state levels and a transformation of EPA’s water quality and compliance information systems.

The administrator’s memo directed the agency to take several actions, including:

• Improve and enhance the information available on the EPA website on compliance and enforcement activities in each state, showing connections to local water quality where possible;
• Provide information in a user-friendly format form that is easily understood and useable by the public;
• Raise the bar for clean water enforcement performance and ensure enforcement is taken against serious violations that threaten water quality; and
• Improve EPA’s enforcement performance in states where EPA directly implements the clean water program.

Administrator Jackson directed OECA to work with EPA’s Office of Water and to consult closely with EPA’s 10 regional offices and the states on the action plan. After obtaining input from other stakeholders, the assistant administrator of OECA, Cynthia Giles, will report back to Administrator Jackson in 90 days with recommendations.

More information on the state-by-state reports: http://www.epa.gov/compliance/state/srf/index.html

More information on EPA and state enforcement data:
http://www.epa.gov/compliance/data/results/performance/cwa/index.html

Copy of the administrator’s memorandum:
http://www.epa.gov/compliance/data/results/performance/cwa/jackson-ltr-cwa-enf.html

Link to 10/14/09 EPA hearing on “The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation’s Waters”:

http://transportation.house.gov/Media/file/Full%20Committee/20091015/SSM_FC.pdf

(as posted on EPA website – see link below)

On December 1, 2009, the U.S. Environmental Protection Agency (EPA) published effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites.

The regulation is effective on February 1, 2010. After this date, all permits issued by EPA or states must incorporate the final rule requirements. All construction sites required to obtain permit coverage must implement a range of erosion and sediment controls and pollution prevention measures. Beginning on August 1, 2011 all sites that disturb 20 or more acres of land at one time are required to comply with the turbidity limitation. On February 2, 2014 the limitation applies to all construction sites disturbing 10 or more acres of land at one time. These sites must sample stormwater discharges and comply with a numeric limitation for turbidity. The limitation is 280 NTU (nephelometric turbidity units).

The December 1, Federal Register notice for the final rule contains incorrect compliance dates for the turbidity limitation for sites disturbing 20 or more acres at one time. This error appears on page 63050 of the preamble to the final rule as well as in the rule text at 450.22(a) on page 63058. Both the preamble and the rule incorrectly state this date as August 2, 2010. The correct date is August 1, 2011. A correction notice to address this error was published on March 8, 2010.

http://www.epa.gov/waterscience/guide/construction/

Release date: 07/06/2009

Contact Information: Deb Berlin, berlin.deb@epa.gov, 202-564-4914, 202-564-4355

WASHINGTON – The U.S. Environmental Protection Agency has made available comprehensive reports and data on water enforcement in all 50 states. This is part of Administrator Lisa P. Jackson’s larger effort to enhance transparency, promote the public’s right to know about water quality and provide information on EPA’s actions to protect water under the Clean Water Act.

In a memorandum issued last Thursday, Administrator Jackson directed EPA’s Office of Enforcement and Compliance Assurance (OECA) to develop an action plan to enhance public transparency regarding clean water enforcement. In the memo, she also calls for stronger enforcement performance at federal and state levels and a transformation of EPA’s water quality and compliance information systems.

In keeping with this directive, EPA has posted detailed information on the current state of clean water compliance and enforcement in each state, and copies of the latest clean water enforcement and compliance performance reports for each state to the agency’s Web site. EPA also launched new Web-based tools to help the public search, assess, and analyze the data the agency used to help prepare those reports.

These actions are among of several aggressive steps taken by Administrator Jackson to improve the nation’s water quality by increasing the transparency and effectiveness of the agency’s national Clean Water Act enforcement program.

The administrator’s memo directed the agency to take several actions, including:

• Improve and enhance the information available on the EPA website on compliance and enforcement activities in each state, showing connections to local water quality where possible;
• Provide information in a user-friendly format form that is easily understood and useable by the public;
• Raise the bar for clean water enforcement performance and ensure enforcement is taken against serious violations that threaten water quality; and
• Improve EPA’s enforcement performance in states where EPA directly implements the clean water program.

Administrator Jackson directed OECA to work with EPA’s Office of Water and to consult closely with EPA’s 10 regional offices and the states on the action plan. After obtaining input from other stakeholders, the assistant administrator of OECA, Cynthia Giles, will report back to Administrator Jackson in 90 days with recommendations.

More information on the state-by-state reports: http://www.epa.gov/compliance/state/srf/index.html

More information on EPA and state enforcement data:
http://www.epa.gov/compliance/data/results/performance/cwa/index.html

Copy of the administrator’s memorandum:
http://www.epa.gov/compliance/data/results/performance/cwa/jackson-ltr-cwa-enf.html

Link to 10/14/09 EPA hearing on “The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation’s Waters”:

http://transportation.house.gov/Media/file/Full%20Committee/20091015/SSM_FC.pdf

05/12/2010

As prepared for delivery.

As some of you know, last night I returned from my second trip to the Gulf Coast since the beginning of the BP spill. The response to the spill is a vivid illustration of just how valuable local waters and wetlands are to our health and the environment…to the economy and to the entire way of life of a community. I’ve said it many times that growing up in New Orleans, between the Gulf and the Mississippi River, I learned first-hand the value of living by the water and what that means to a community. It’s the same thing I see here. Whether we face an immediate, emergency situation as we do with the BP Spill or the accumulation of daily pollution and environmental degradation – our responsibilities to address the problems and find solutions are exactly the same. That is why we are all here today.

Under the leadership of President Obama, EPA and our colleagues in multiple federal agencies have been tasked to strengthen the protections for the Chesapeake Bay in unprecedented ways. And for very good reasons. Protecting the Bay is about protecting the lives and livelihoods of 17 million Americans who live in this region. It’s about the people who live and work here. And it’s about safeguarding this irreplaceable ecosystem.

Exactly one year ago today at Mount Vernon I helped announce the President’s Executive Order bringing together EPA, 10 federal agencies, six states and the District of Columbia to address the impacts of pollution throughout the Chesapeake and its 64,000-square-mile watershed. Today I’m proud to help present the Strategy for Protecting and Restoring the Chesapeake Bay Watershed – an effort to which we plan to devote unprecedented resources and unmatched effort.

This is a far-reaching and creative strategy. My colleagues will go into more details about specific efforts, but let me say that we are initiating one the most comprehensive protection effort in decades. We will be working with government at all levels, and engaging the farmers and forest owners and water workers and community groups who know this area best. We will implement broad conservation and restoration efforts – and we will strengthen our work to prevent pollution from the urban, suburban and rural areas that feed into the Bay. And, perhaps most importantly, we will implement higher levels of accountability than ever before. We are holding ourselves accountable for nothing short of real, measurable results. Federal agencies are setting two-year milestones to track our progress and support the states’ own two year milestones. We will also publish an Annual Action Plan detailing projects, priorities and funding for the year ahead. We will follow that up with an Annual Progress Report to track how well we deliver on those plans.

One of EPA’s primary roles in this effort is the enforcement of aggressive standards to protect the Bay from pollution, using rigorous regulation and enforcement to implement the pollution controls needed for clean water. We’re initiating rulemaking for CAFOs and stormwater and establishing a Chesapeake Bay Total Maximum Daily Load, or TMDL. That TMDL will begin a strict “pollution diet” for the Bay and the region’s streams, creeks and rivers.

We’re also increasing enforcement and doubling state funding levels to $11.2 million this fiscal year. Let me emphasize that state partnerships on this effort are absolutely essential. The years of work from Governor O’Malley and others, the efforts of Governor Kaine when he served as chair of the Executive Council, and the commitment shown by Governor McDonnell to continue the state leadership on this issue are critical to our success. The work ahead of us requires innovation, but it also requires broad partnerships – federal, state, local and private. The quickest way to achieve success is to work together.

Another great example is the Earth Conservation Corps and the Living Classroom – some of whom are here with us and hosting us today. They are a great example of the energy we need to tap to do this job. And as members of the next generation, they are the people we are working for.

Today’s strategy is a map to guide us down the long road ahead. I have confidence that we will reach our destination. We will create a Chesapeake Bay where people can swim, picnic and fish, and communities where local economies can thrive. And we will restore the Chesapeake Bay and protect its legacy for future generations. I look forward to taking that journey with all of you. Thank you very much.

More commitment and accountability help builders stay environmentally compliant and build a competitive edge

Bill Robinson
President

Bill Robinson is a founder and president of Stormwater Risk Management LLC, Denver. SRM created one of the first state- and EPA-endorsed industry-self-policing compliance programs in the nation, called the Colorado Stormwater Excellence Program. Robinson graduated from Washington State University in 1984 with a BS in construction management and has 27 years of experience in a broad range of construction industry roles.

Construction companies must develop superior risk-management skills to achieve long-term success. Less predictable risk factors such as weather, cost of materials, labor availability, project budgets, cash flow, worker safety, subcontractor performance and building department approvals cannot be controlled but still must be managed. The construction industry changes often and continually poses new risk-management challenges. One change that began in the mid-1990s was the increased focus on sustainability and compliance with environmental regulations, and many in the building industries have been slow to respond.

Often overlooked is the everyday risk of costly regulatory enforcement actions or lawsuits from failure to comply with jobsite environmental requirements. To make matters worse, the cost to the violator no longer ends with just a fine or a monetary settlement.

Owners, especially on state and federally funded projects, are beginning to demand that companies have a clean environmental history as a prerequisite for bidding. Additionally, the U.S. Environmental Protection Agency’s Expedited Settlement Offer program offers rapid settlements and reduced fines, but only for first-time violators. What seems like a minor compliance enforcement action today could cost your company for years to come.

Contractors can take three relatively simple steps to avoid regulatory fines, lawsuits and the long-term risks associated with a negative environmental history. With a fourth step, a contractor can even turn its regulatory compliance program into a competitive advantage.

Step One

Make a top-level corporate commitment to regulatory compliance. Companies without a strong corporate policy toward regulatory compliance display a wide range of compliance levels between individual jobsites. Some project teams may pay attention to regulatory compliance while others do not. Murphy’s Law dictates that a company’s worst-performing jobsite will be the one visited by regulators at the worst possible time. Ignoring compliance on just one project can be a very costly oversight.

Corporate environmental policy should lead to a standard approach for consistent compliance across all sites. Without this top-level corporate commitment, there is little natural motivation for jobsite personnel to stay compliant now and over the long term.

Step Two

Establish strong accountability systems. These should assure that the corporate compliance policy is applied on all jobsites. Effective accountability must start by communicating reasonable performance expectations, defining clear roles and responsibilities and establishing a standard way to measure and report performance. Accountability remains effective over time only when upper management provides regular performance feedback in sync with corporate expectations.

Few companies have established a political structure that encourages effective internal self-policing and unbiased reporting. Underlying politics that may not be outwardly visible often affect internal compliance reporting and cast doubt on the accuracy of the results. This undermines the foundation of the accountability system.

The strongest accountability and best results will be achieved when the data comes from an outside reporter with no political stake in the company. Company executives must be reasonably certain that compliance performance data is being accurately reported so they can provide appropriate feedback to project teams.

When executives regularly give feedback to their employees based on credible performance data tied to corporate expectations, impressive performance improvements usually follow. With effective accountability systems in place, employees will be motivated to seek the training and knowledge they need to perform at or above corporate expectations.

Contractors can take three simple steps to avoid fines, lawsuits and the long-term risks of a negative environmental history.

Companies then need to make the appropriate training available. The common response of companies after they have gotten into compliance trouble is to require unmotivated employees to attend training that will “fix the problem.” This approach rarely delivers the desired results and misses the root cause of the problem, which is often a lack of clear performance goals and effective corporate accountability.

Step Three

Implement a standardized compliance assistance system company wide. A standardized system should convey corporate expectations, clearly define roles and responsibilities and supply the basic information and tools needed to maintain project compliance. Developing such a system is not that difficult, even for national firms, because almost all environmental regulations are based on federal requirements, with only minor adjustments for state or local ones.

One additional step a company can take is to participate in an environmental excellence program and raise minimum compliance to a level that becomes a competitive advantage. EPA and most states offer programs such as Performance Track, the details of which can be found on their Websites.

These programs usually require a company to create and implement an environmental management system. Implementing an EMS successfully, however, can be cumbersome and requires a very high level of corporate commitment. The AGC of America has produced an excellent resource guide to help contractors with the process, it’s called “Constructing an Environmental Management System,” which is available through the AGC Website bookstore at www.agc.org.

Innovative, pre-packaged alternatives such as the EMS-based Colorado Stormwater Excellence Program are also gaining industry and regulatory acceptance.

Increasingly, project owners are selecting builders that can help improve their environmental image rather than choosing builders who might jeopardize that image. A number of construction industry leaders have recognized this trend and are already positioning their companies favorably for this competitive advantage by building strong, documented track records of environmental stewardship. For these leaders, reduced environmental risks and sleeping better at night are added benefits.