By: Rick Willard and Jiovanna Toppi
The Colorado Department of Transportation (CDOT) received a Notice of Violation (NOV) on Nov. 17, 2005, for violations to Stormwater Construction Permits (SCP), issued by the Colorado Department of Public Health and Environment (CDPHE).
After three years of negotiations, an agreement was reached between CDOT and CDPHE and a Compliance Order on Consent (CO) took effect on Jan. 1, 2009. Since then, CDOT has spent the last 3½ years institutionalizing the requirements and striving to implement policies and procedures to prevent further regulatory directed changes.
SCP-regulated sites require best management practices (BMPs) to be documented through storm-water management plans (SWMPs). BMPs can be structural features or nonstructural practices to protect water quality. They need to be documented, installed and maintained until the site has achieved final stabilization and a uniform vegetative cover has been established of at least 70% of pre-disturbance levels.
Throughout the months of May and June in 2005, CDPHE conducted a series of compliance inspections on 12 of CDOT’s open SCP projects. The projects were found to be in noncompliance and the NOV was issued. It ordered CDOT to follow 11 specific terms and conditions that required submittals to CDPHE within the time frames of 15, 30, 60, 120, 365 and 400 days.
“The effort to meet the new requirements was exhausting,” said Tom Boyce, CDOT’s hydrologic resources and ecological design section manager. “Needless to say, CDPHE received our attention.”
“Injunctive relief” is the practice of implementing program changes to comply with regulations prior to the finalization of a regulatory enforcement action to reduce the CO requirements and fine settlement. CDOT implemented policy and procedural changes as well as management-directed mandatory training on water quality topics to demonstrate a willingness to comply with regulations and to receive credit for injunctive relief.
Creating, adding and learning
Just over three years after the issuance of the NOV, CDOT and CDPHE agreed upon a CO. It included a fine of $506,385 that was payable as Supplemental Environmental Projects (SEPs) in lieu of direct payment to CDPHE. SEPs are CDPHE-approved projects that improve environmental issues, but do not directly benefit CDOT. In addition to the changes CDOT enacted through injunctive relief practices, the CO required CDOT to implement 18 policy, procedural and administrative requirements designed to further CDOT’s compliance with regulations. The CO in its entirety can be accessed from CDOT’s website at: www.coloradodot.info/programs/environmental/waterquality/documents/CDOTconsentOrder.pdf.
The first CO requirement stated that “CDOT shall immediately implement measures to maintain compliance with the Colorado Water Quality Control Act and the terms and conditions of the Stormwater Construction Permit.” To accomplish this, CDOT rewrote and implemented policies, procedures and construction specifications. Each was designed to “maintain compliance” with the Colorado Water Quality Control Act.
The second condition of the CO was to require “all existing and newly hired engineers and other employees who are involved in project design, oversight and/or maintenance related stormwater drainage and quality to attend a stormwater training course, or series of courses (including refresher courses).”
CDOT began its storm-water training effort with maintenance personnel—1,350 maintenance workers were trained during both 2011 and 2012 fiscal years. To capture the required “all existing and newly hired engineers and other employees who are involved in project design,” another series of classes was developed. While training of other personnel continued up until this time, on June 1, 2012, CDOT’s chief engineer, Tim Harris, signed a training initiative directing mandatory training classes to satisfy the CO terms and opportunities for internal certification. The training initiative also increased CDOT’s existing Erosion Control Supervisor certification from one-day to a two-day class based on CDOT’s observation of this need.
The added second day will be a combination of hands-on application and classroom discussion of CDOT storm-water specifications at CDOT’s BMP Field Training Academy. The BMP Field Training Academy is one of the SEPs and was constructed to provide a hands-on venue for BMP installation, maintenance and inspection training. The facility includes irrigation components that mimic natural precipitation events and resulting runoff to test proper as well as inadequate BMP installations.
CDOT takes full advantage of the BMP Field Training Academy by not only meeting the CO requirements and training CDOT personnel but additionally training contractors who bid on CDOT projects. The BMP Field Training Academy is used to host vender demonstration days, tours and training for people throughout Colorado.
“We are proud of this facility and the trainings that we offer here. Most people agree that a hands-on approach to training works best,” stated CDOT’s senior Landscape Architect Mike Banovich.
The submission of semiannual reports on the training and monthly inspections were another requirement. These reports have been prepared and submitted per the CO terms.
“Incorporation of Stormwater Management Plans (SWMP) in the planning and design phase of every construction project that results in a land disturbance of equal to or greater than one acre” was a requirement that CDOT worked hard to accomplish.
An internal committee was formed to develop a SWMP template that would be used on all project plan sets requiring a SWMP. The committee designed the template following CDPHE SWMP development guidelines and had it reviewed by the CDPHE Stormwater Unit Lead. In addition, CDOT’s specifications committee revised the Standard Specifications for Road and Bridge Construction manual to incorporate the required new language that “CDOT or its contractors shall not submit a permit application for any CDOT construction project until a site-specific SWMP has been developed that meets all the requirements of the Permit.”
The hiring of six additional employees to serve as water pollution control managers was a CO requirement. Due to hiring regulations CDOT had to receive special permission from the State Transportation Commission to fill these new positions. Permission was granted and the positions were filled.
CDOT designated their chief engineer as the director of storm-water compliance to satisfy another condition. Now included in all official submittals to CDPHE signed by the chief engineer is a certification statement that states:
“I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”
A number of requirements of the CO involved construction activities and inspections. Prior to the initiation of construction activities, a meeting must be held with the employees at each site to “explain the requirements of the Permit, the site-specific SWMP and any other environmental requirements for the site.” In addition, “. . . implementation of a stormwater compliance evaluation program for contractors . . . Escalation protocols and timelines for the utilization of repercussions to dissuade or prevent noncompliance with the Permit . . . Monetary sanctions or disincentives; stop work orders; loss of qualification for bonuses and other awards; loss of the ability to compete for future contracts; withholding payments for services not rendered; etc.”
The specification committee’s rewrite of CDOT’s Standard Specification for Road and Bridge Construction manual incorporated the necessary language to address these requirements. Moreover, all bidding parties are informed of the compliance requirements of the CO.
The modification to the Standard Specification for Road and Bridge Construction manual fulfilled a number of other CO requirements. These include, prior to the initiation of construction activities, the water pollution control manager and the contractor’s project superintendent must “inspect the project to determine whether the BMPs described in the site-specific SWMP are installed and located correctly.” Also, weekly meetings must be held by the contractor’s project superintendent to “review requirements of the SWMP and the Permit and to address any problems that have arisen in implementing the site-specific SWMP or maintaining BMPs.” The contractor’s superintendent or designee must conduct an inspection on each business day in which active construction has occurred at a project, and at least once per month each region’s water pollution control manager must perform an audit/inspection.
Prior to submitting an inactivation notice for any permit certification, the region water pollution control manager must perform an inspection to “ensure that the site meets the conditions of final stabilization, as defined by the Permit and that all necessary measures have been taken to close out Permit coverage.”
This CO requirement reiterates the importance of a pre-inactivation notice inspection to ensure that adequate final stabilization has been reached. CDOT developed new inspection software to assist with many of the CO requirements.
The final CO requirement is that CDOT shall submit “IPOs related to environmental performance, including erosion control and water quality, into the annual Performance Evaluations of all CDOT engineers, environmental personnel, and applicable maintenance personnel.”
Individual performance objectives (IPOs) are the factors that all CDOT employees are evaluated against to determine their annual performance rating. Environmental performance, erosion control and water quality IPOs were developed and inserted into the employee personnel files for all CDOT engineers, environmental personnel and applicable maintenance personnel to meet this requirement.
Huge challenge, huge success
“The CO requirements were a huge challenge to implement,” explained Boyce.
Implementing such a large change in any organization is very difficult, and it was no different with CDOT. The implementation of the CO requirements was especially challenging because many people felt the requirements were excessive and punitive. It required the re-education of people that have been doing business differently for a long time. The executive management decision to enter into the CO with CDPHE was not a decision taken lightly or without a great deal of thought.
Changes to CDOT’s Standard Specification for Road and Bridge Construction manual required extensive coordination and communication across all disciplines including engineering, maintenance and environmental. Once the changes had been agreed upon and the manual was updated, those changes needed to be communicated to all those who could be affected. Simply sending out an e-mail was not an adequate means for delivery. Updating manuals and implementing changes requires a multiple-pronged delivery system including e-mails, construction and design bulletins, training programs and word of mouth. Invariably, not everyone who needs to incorporate the message receives it.
Entering into the CO has affected not only CDOT staff but also almost every contractor, municipality, developer and consultant that does business with CDOT.
The delivery of the CO requirements was not a one-time effort. For CDOT, it is an ongoing challenge as the CO requirements were designed to create a culture shift.
Water quality has risen in importance to all levels of CDOT, including executive management. Performance measures and IPOs are used to communicate the importance to CDOT employees of their agreement with water-quality compliance. Full advantage of the hands-on BMP Field Training Academy, one of the few in the country, is being used to increase the effectiveness of CDOT’s water-quality education. More information about CDOT’s BMP Field Training Academy can be found at: www.coloradodot.info/programs/environmental/water-quality/bmp-training-facility. R&B
About The Author: Willard is the Hydrologic Resources Unit lead and Toppi is a hydrologic resources specialist, both with the Colorado Department of Transportation. They can be reached at [email protected] and [email protected].
