Legal Tools for the Reduction of Construction Site Stormwater Pollution--by Jamie Saul

Constructing clean water

We’ve all seen it: the brown, muddy water flowing off of bare ground at construction sites, where protective vegetation has been stripped away. That sediment is itself harmful to lakes, but the sediment can also carry other pollutants like phosphorus, oil and grease, or heavy metals.

According to the U.S. Environmental Protection Agency, “the sediment, turbidity, and other pollutants [contained] in stormwater discharges associated with construction activity contribute to aquatic ecosystem degradation, increased drinking water treatment costs, and impairment of the recreational use and aesthetic value of impacted waters. Sediment can also accumulate in rivers, lakes, and reservoirs, leading to the need for dredging or other mitigation in order to prevent reduced water storage or navigation capacity.”[1]

Like other “point sources” of water pollution, most construction sites are required to obtain wastewater discharge permits from either EPA or the Wisconsin DNR. These permits include requirements to keep lakes and rivers as clean as possible, including the requirement to install and correctly maintain best management practices (BMPs) for erosion prevention and pollution control. These BMPs are physical devices – such as storm drain inlet filters, washed stone berms, or silt fences – that prevent unnecessary pollution from reaching the water.

Enforcing the permits

Whenever a permit-holder violates the requirements of its discharge permit (for example, when BMPs are incorrectly installed or not maintained), the EPA, DNR, or citizens may enforce the terms of the permit through a variety of legal mechanisms. Citizens are authorized by the Clean Water Act to file a “citizen suit” in federal court, directly against the polluter, in order to abate the violations and protect local water quality.

As part of the suit, the citizens may also seek civil penalties for past and present violations. Similar citizen suit provisions are included in all major federal environmental statutes, and for 40 years they have proved to be a powerful tool for environmental protection, allowing citizens and conservation organizations to fill the enforcement void left by under-funded or politically unmotivated state and federal agencies.

On June 23, 2010, a small group of citizens residing in the Lake Wingra watershed sent to the City of Madison and Speedway Sand & Gravel, Inc. a “60-Day Notice” of their intent to sue for stormwater permit violations committed at the Edgewood Av Reconstruction project in west Madison. Even after multiple citizen complaints, sediment-laden stormwater continues to stream down the very steep Edgewood Avenue and into Lake Wingra, and various BMPs installed by the contractors have not maintained or repaired after several rainstorms.

The citizens, represented by James N. Saul, Attorney at Law LLC, hope that the City will respond proactively to the Notice letter so that Lake Wingra can be protected without resort to litigation.

For more information, contact Jamie Saul at jamie@jsaulattorney.com or www.jsaulattorney.com.

Citizen concern about erosion prompts suit

Attorney James Saul recently filed a 60-day notice to sue against Speedway Sand and Gravel, and the City of Madison, for failing to install and maintain proper erosion control measures at the Edgewood Av construction site.

The suit was filed on behalf of three residents of the area, and seeks

• Civil penalties of about $22 million ($37,500 per individual violation, times the number of days)
• Funds for a remedial project to benefit Lake Wingra
• An order requiring Speedway and the City to cease their unlawful discharges
• Payment of legal fees

The papers filed detail a large number of examples of negligence and violation of the law by the City and Speedway.  The specifics fall under these headings:

• Failure to Maintain Specific Best Management Practices (BMPs) identified in the Erosion Control Plan
• Failure to Properly Construct and Maintain Runoff Settling Basins and Pit/Trench Dewatering Settling Basins
• Failure to Conduct BMP Inspections and Repair or Replace BMPs as Necessary Following Rainfall Events of 0.5 Inches or Greater
• Failure to Modify or Curtail Operations as Necessary to Maintain Permit Compliance

"The Clean Water Act authorizes citizens to bring a civil action in the appropriate federal district court in order to enforce the effluent limitations, terms, or conditions of a permit.... The CWA also requires citizens to provide alleged violators of the CWA with at least 60 days' notice of their intent to file suit."

The suit really seeks to begin a dialogue about the City's overly cozy relationship with contractors who abuse trees and other environmental regulations.  It was this same kind of cozy relationship with Federal regulators that led to the Gulf disaster with BP.

At the end of the notice to sue, Atty. Saul said: "We welcome and invite the opportunity to resolve this matter without resort to litigation. We view the 60-day notice period as a chance to hold meaningful discussions with the City of Madison and Speedway Sand &Gravel in order to resolve the ongoing Construction Site GP violations at the Edgewood Avenue Reconstruction Project. If, however, neither the City nor Speedway is interested in such discussions, or if we are unable to resolve this matter to my clients' satisfaction, we will file suit at the end of the notice period."

Erosion control at Edgewood Av completely overwhelmed

Edgewood Av during the heavy storm of June 21. Photo by J. Saul.

During the recent heavy strorm, photographers for Contractor Report were out again, documenting inadequate erosion control measures.  This slope dumped yet another plume of muddy water in L. Wingra.

Attention contractors:

The citizens of Dane County will hold you accountable for results.  If your work results in several instances in sediment escaping the site and impacting local water resources, Contractor Report will publicise your negligence, and seek other remedies.  Speedway Sand and Gravel was responsible for the above fiasco.

Much sediment results from resurfacing of Watts Rd, Struck St, & Rayovac Dr

Problems at this site, showing up on a rainy weekend (6/13):

• Much debris & sediment on pavement & gutters.  Not swept.
• No filters on stormwater inlets--20 were worked on.
• Litter left in gutter, possibly by contractor.
• Poor stabilization with soil & straw in gutters.

Link for photos.

Hoffman Construction--Reconstruction of University Av, Segoe to Shorewood Blvd

The project involves resurfacing and laying of large stormwater pipes to decrease flooding.

Our concerns as of 6/7/10:

• At virtually all the ten construction entrances, the gravel tracking pads were inadequate, not up to the required 50' length.  General traffic was traversing some of these unprotected muddy areas.  Photos of tracking pads here.
• Mud was being tracked far off-site.  I followed conspicuous mud as far as the highway 12 on-ramp in Middleton, six miles away.  It came from muddy water dripping from trucks, not actual tire tracks. Slide show of tracks here.  Map
• Sediment was flowing off-site at 3918 University Av.  This was a minor breach, but should be fixed. Photo

Contacts:

Hoffman Construction http://www.hoffmanconstructionco.com/  715-284-2512
The Field Office phone is (608) 232-1176, Kevin Eslick, Project Supervisor, kevin.eslick@aecom.com
Alder for this disctrict: Chris Schmidt  district11@cityofmadison.com
The erosion control inspector is Kevin Eslick and his staff.
City Construction Engineer: John Fahrney jfahrney@cityofmadison.com (608) 266 9091
Contracts 6387 for paving and 6394 for State-City cost sharing.

State Journal article for next phase of the project, to the west.

Krupp Construction at Sequoia Commons, Phase II

This is the second half of construction of condominiums and shops at the corner of Midvale and Tokay Blvds.

On the whole, we are satisfied with the environmental protections at this site.  Sediment control is much improved over Phase I, possibly because the city began a program of self-reporting on erosion control measures.   There is zero muddy runoff, except for a little at two spots on Caromar Dr.

The contractor is lucky to have a relatively flat site, which is easy to control.  But it's difficult to work inside, because the site is very cramped.

We are pleased with how the large rain garden along the east side of Phase I works.

However, there are some continuing small problems we would like to see resolved, shown in the photos below:

This muddy water is trickling from the entrance in the rear, along the silt sock.

Water in the gutter flows past this gravel pad, picking up sediment.

There have been continuing problems with dirty tracks on the pavement.  We would like to see sweeping extended as far as tracks are visible, to at least two blocks.

Krupp says: "Quality control is vital to the success of every building project."  We hope they include adhering strictly to their erosion control plan.  "You can trust Krupp General Contractors...."

View City inspection reports here

Krupp Construction: .tprewett@kruppconstruction.com,  608-249-2020
Mark DeAmicis of Krupp Construction is responsible for this site.

Speedway Sand and Gravel, Middleton WI

Project: Water mains, storm sewer, and resurfacing on Edgewood Avenue, Madison, WI,  Summer of 2010.

The performance of this contractor has been mixed:

On the positive side, we note that they have been responsive in communications, and have been steadily improving their control of runoff.  The construction phasing (keeping as much pavement intact as possible) has worked well.   When mistakes are made, the foreman has shown a willingness to correct them on weekends (as required by law).

We note that the weather has been bad, and the construction site is unusually hilly and very close to a sensitive resource.  But these complicating factors should have been planned for.

On the negative side:  Detailed report here

• Especially serious was the delay in implementing most parts of their erosion control plan until well after construction started.  It took a complaint, and a serious rainstorm with muddy runoff into Lake Wingra, before serious progress on sediment control started.
• So far, three incidents of muddy runoff into Lake Wingra have been photographed.
• Street sweeping, a basic and essential part of the sediment plan, has been inconsistent.
• We've documented a number of smaller infractions, such as improperly installed inlet filters, use of unwashed gravel for tracking pads, etc.

Given the mixed results, we are inclined to wait and watch.  But we are close to giving this contractor a permanent negative report, if another serious runoff incident occurs.

Given the closeness of this construction site to a sensitive resource, we have higher standards than the city.  It's possible that Speedway could do everything the City requires, and still receive a negative report on this website.  Surveys show Madison residents are dissatisfied with what the City is doing to protect our lakes.
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Update: 6/8/10 evening

The gravel tracking pads are still not right.  The city inspector earlier found two inadequate; we find 4 of 5 inadequate (not fully 50 feet long or wide enough).  At the Madison street entrance, it is wet and muddy, with many tracks leading down the street.

Update 6/9/10
Gravel pads: The city has "passed" some of the entrances, and called for upgrade on others. Yet when I looked today, they had not been upgraded. This is clear, baldfaced violation of standards. Violation by the city for "passing" the inadequate pads, and violation by Speedway for not carrying out the required upgrade in a speedy fashion. Not only are the pads too small in area, but they are of gravel of too small a size, and the gravel is probably unwashed (I say this because gravel in a check dam was unwashed).

Who to contact
Owner: Tom DeBeck, tom@speedwaysg.com, Speedway office: 608-836-1071
Foreman: Todd Timmerman, mobile 608-575-1499
City construction site inspector: Tim Troester, ttroester@cityofmadison.com
Phone emergency stormwater tips to: 1-800-847-6367
View City inspection reports here.

Links to photo documentation of this construction site's problems:
Edgewood Av Construction before the rain, 5/26/10
Edgewood Av Construction during the rain, 5/26/10
Edgewood Av Erosion Control Improvements, 6/1/10
Edgewood Av street construction during rain, 6/2/10
Edgewood Av Erosion Control Improvements before rain, 6/5/10
All photos on inlet filters from 5/26 and 6/2.

S&L Underground & Trucking of Sauk City

Some of the problems attributed to S&L Underground & Trucking

• Overly large equipment used
• Serious damage to roots of many mature trees; some had to be cut down
• Litter from construction crew
• Damage to many tree trunks and branches from heavy equipment
• Damage to utility pole
• Crack in dining room ceiling from reverberations from equipment; cracks in foundations of old homes

"Contrast that with Milwaukee, where a strong policy not only protects trees against construction damage but uses a sliding scale to penalize contractors for infractions. James Kringer, Milwaukee's forestry construction supervisor, says the damages to six Madison trees caused by the contractor S&L Underground & Trucking of Sauk City could have brought $25,000 in fines."  Source

Sources:
Isthmus article on urban forestry: "A tree falls in Madison." 10/2/09
The Daily Page, "We're Stumped, 10/2/09
Blog post: "Pictures: Madison’s Spaight Street Residents Angry Over Tree Damage From City Street Project," 7/1/09
Blog post: "Capital Times: “Slaughter On Spaight Street-Trees Goin’ Down”  7/8/09
Blog post: "Madison’s Spaight Street Tree Loss, City Gain" 1/13/10
Cap Times article, 9/24/09
The Daily Page, "Good news for Madison's urban forest,"1/28/10