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IItt wwaass aa ddaarrkk aanndd ssttoorrmmyy nniigghhtt
. You bolted upright in bed wondering
if your SWPPP, under the supervision of the PM using BMP’s, would
protect the BSA and ESA from the SAP the next day by the RWQCB
and the SWRCB. You slept no more.
If you recognize the acronyms above, you understand that “dark and
stormy nights” are a significant concern when you are immersed in the
world of Storm Water Pollution Prevention Plans (SWPPP).
Having a plan in place on a construction project is no guarantee against
disasters, runaway costs, fines and potential work stoppages. Neither
Mother Nature nor state and local SWPPP officials are predictable.
The purpose of this article is not to offer technical advice on what a
recent court decision called a “complicated web of federal and state
laws and regulations concerning water pollution.”
1
Indeed, that would
be impossible in the few paragraphs allowed.
As you read this article simply remember this theme: “Effluent flows
down hill.” Storm water and effluent do not always follow the same
complicated web that the laws and regulations follow. Municipal
handbooks on the subject are lengthy.
For example, the Caltrans “Storm
Water Quality Handbooks” are
several hundred pages long and
filled with diagrams and statutory
references delving into minutiae; e.g.
“…. proper composition and
dimensions of wood stakes made of
quality lumber and free from decay
splits or cracks longer than the
thickness of the stake…”zzzzzzzzz.
Analysis of SWPPP laws and refer-
ences could only excite those with a
passion for reading tax regulations
or whose hobbies include
discussing the benefits of plastic
versus vinyl pocket protectors.
The point of this short article is twofold: (i) to provide design profession-
als, owners, developers, and contractors with a broad overview of the
complicated web” of SWPPP; and (ii) to emphasize the importance
of contractually allocating risk and responsibility for compliance with
the applicable laws and regulations prior
to filing for a permit.
The following anecdote illustrates the potential pitfalls and dangers of
SWPPP. Only names and inconsequential facts have been changed to
protect the innocent.
Recently, a moderate-sized contractor began a project in Central
California where the number of acres of soil to be exposed in the
winter was significantly less than could be exposed in the summer.
The contractor obtained all permits and had a SWPPP applicable to a
ten year rain incident as required by local agencies. Unfortunately, the
project was delayed and large portions of the soil remained exposed to
winter conditions. Unbeknownst to the contractor, the site had substan-
tial colloidal clay soil. The type of clay was not detailed in the soils
report because it was not relevant to compaction requirements.
As you guessed, there was a storm which exceeded the capacities of the
project BMPs (Best Management Practices). The retention basin
constructed to catch storm water overflowed and cloudy water reached
a nearby drain inlet. The contractor properly contacted its SWPPP
consultant, who recommended draining the basin manually using a
filter bag over the end of the drain outlet. That was done, but a
governmental inspector “happened” by and noticed the cloudy discharge.
The inspector performed some rough arithmetic and concluded
18,000 gallons of cloudy water had been diverted into the creek. He
also calculated a fine of $10 per gallon ($180,000) plus a $10,000
single day fine. Whereupon, the contractor nearly released some
effluent” of his own. What should the contractor have done The
contractor filed and followed a proper SWPPP and had the proper
permit. The storm magnitude exceeded the SWPPP. A consultant was
called for advice. That advice was followed. Nonetheless, the contrac-
tor or owner faced a potentially crushing $190,000 fine because of an
unpredictable storm.
The problems did not end there.
Colloidal clays are not uncommon
in California and generally require
chemical treatment for settlement
to avoid cloudy runoff. On this
project, chemical treatment would
have had an initial cost of $30,000
- $50,000 and a monthly charge
well into the thousands of dollars.
Understandably, the principals did
not anticipate the problem (or the
fines) as the project was supposed
to have been started in the
summer.
The story had a somewhat happi-
ly-ever-after ending: Ultimately,
the agency significantly reduced the fine based upon the Contractors
efforts and a commitment by the Contractor to provide for addition-
al SWPPP training of its supervisors—kind of like an environmental
re-education camp.
Overview of SWPPP
Currently in Californias larger urban locations, construction sites with
an area of one acre or greater must comply with the Federal CleanWater
Act and other storm water runoff regulations. Smaller sites can also be
included. The authority to issue permits for these projects, like effluent,
flows downhill. The Federal Government requires California to comply
with the Clean Water Act. The State enacts its own laws and grants its
compliance authority to the various RWQCB’s, which then require
compliance with the Federal and State laws by county and city govern-
ments. The local political entity, not wanting to be left out, enacts even
more regulations and requires a project owner to comply with all of the
laws and regulations for permitting. Each lower entity answers to the
higher authority. Compliance starts at the local level, when the owner
applies for a building permit. To obtain a building permit the owner
must submit a SWPPP to the local agency.
PARDON ME YOUR SWPPP IS SHOWING
By: John Broghammer, Esq., Scott Cofer, Esq. and Gary Vinson, Esq.
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