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The SWPPP is generally a collection of BMPs, specifications and other
plans, all of which seek to avoid pollution and/or improper sediment
release in storm water runoff. Generally, the SWPPP is designed to do
three things:
1. Prevent water from contacting polluted work areas (e.g. oily wastes
near a dock);
2. Keep pollutants off surfaces that contact water (e.g. avoid exposing
contaminants near streams); and
3. Manage/clean storm water before it leaves the site and is discharged
to the public storm drain (e.g. using filters or treatments to remove
pollutants).
Many governmental entities produce publications identifying
standard” BMPs which can be adopted to help satisfy the SWPPP
requirement and obtain a permit. These BMP’s are usually available
through government websites.
To actually create the SWPPP, the owner contracts with one of three
entities: a SWPPP consultant/
engineer, the architect, or the
general contractor. Ultimately, it
is the owner who is responsible
for non-compliance. Therefore, it
is important and prudent that
the contracts clearly designate and
allocate responsibility for both
SWPPP preparation and compliance. In addition, other burdens are
placed on the parties, such as training of employees in SWPPP compli-
ance. Remember, the lifes work of 100 geniuses can be undone in
minutes by one persons failure to pay attention to detail.
Avoiding violations of the SWPPP is crucial as penalties and sanctions
can be costly. For example, the City of Sacramento can issue citations
and fines of $5,000-$25,000 per day, and higher for per gallon
violations. Not long ago a prominent local developer was hit with a
fine of nearly $600,000 for dirt and chemical runoff by the Central
Valley RWQCB. Depending on the severity of the violation, the
enforcement can be as severe as a stop work notice.
Allocation of Risk for SWPPP Compliance
Many contractors and design professionals have horror stories of overly
zealous inspectors. The story discussed at the outset of this article
created several dilemmas. Who should pay the fine Who should pay
for chemical treatment What happens if the fault is shared Can the
project be shut down and if so then what happens How can the
parties protest the fine, but keep the project on schedule Answers to
these questions are elusive and become difficult to find when parties
are under the stress of substantial fines and shut down orders.
Plan for the worst, and never assume the project will be confined to
the dry season. There are multiple lessons to be taken from this article.
First, always plan to have soil exposed in the dry season. Second,
ignore the first point. Third, use experts in the field, know the regula-
tions, make sure the involved parties are trained in pollution
prevention, and do your best to cooperate with the inspectors.
Fourth, have a clear agreement on responsibility for SWPPP
compliance, and an established chain of command for
emergency/storm conditions. Know how to reach the SWPPP consult-
ant on weekends and “dark and stormy nights”. Fifth, have a well
established procedure in place for the prompt payment of fines and a
post-citation strategy to determine final responsibility. For example, a
contractor or small design professional may not have the cash on hand
to pay a $25,000 fine. What happens then!
Sixth, create a plan for cooperation between the involved parties to get the
citation resolved or reduced; pay the fine (if levied) and keep the project
moving forward. In the earlier example, the contractor did nothing wrong.
Should the contractor have to pay the huge fine or should the owner (or
should someone else) It is imperative to know these answers before you are
standing knee deep in “effluent”. Seventh, the parties should contractually
agree to a method for meeting unexpected conditions requiring expenditures
of money for new or additional SWPPP requirements. It does no good to
have the project stalled while the parties argue about responsibility for the
pending problems.
The contractor and owner in the
anecdote were fortunate that the
local agency was “reasonable” in
reducing the fine (even though
the contractor had followed the
SWPPP). The reduction made it
possible to continue the project.
However, it is not reasonable to
assume that all governmental agencies or individual inspectors will han-
dle the issues as that agency did.
It is a fair assumption that SWPPP requirements are here to stay. The
requirements, however laudable, should be expected to become even
more burdensome. Knowing SWPPP responsibilities ahead of time
will help keep the inevitable disputes to a manageable level.
Compliance with the permit requirements, as well as all governmental
regulations, is a must. However, because compliance relies in part on
Mother Nature, noncompliance is the rule not the exception.
Remember the important maxim of construction projects: “effluent”
flows downhill. Plan ahead. Use experts. Know the regulations.
Contractually allocate risk. Stay on time.
We hope this short article has been helpful. If you have additional
topics you would like to see addressed in future articles or need experienced
construction counsel, please contact one of the undersigned.
John Broghammer, Scott Cofer, and Gary Vinson are attorneys and
partners with Greve Clifford Wengel & Paras LLP in Sacramento,
California. Greve Clifford has represented clients in the construction and
design professional industries for more than three decades. Please see our
firm’s display ad on page 15, or visit our website at www.greveclifford.com.
©
2006 Greve Clifford Wengel & Paras LLP
1. City of Rancho Cucamonga v. RWQCB, 135 Cal App 4th 1377, 1380 ( 2006).
2. The RWQCB (Regional Water Quality Control Board) does not have the authority to
shut down a project. However, because local governments must answer to the RWQCB,
the RWQCB can require that the local governments stop the work on a project. It rarely
happens that a project receives a shut down order. Instead, they typically fine you into
submission. It is the equivalent of professional wrestling’s “sleeper hold”; fighting
only makes it worse.
There are multiple lessons to be taken from this
article. First, always plan to have soil exposed
in the dry season. Second, ignore the first point.
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