By: Larry Caudle
Given the increased scrutiny of state and federal environmental agencies over projects let by state highway departments across the country during the last few years, I am frequently asked by contractors how to respond to what appear to be growing unrealistic expectations concerning the control of erosion and sedimentation on and off of the construction site.
Radar enforced
Laws aimed at curbing silt runoff, as well as government programs to enforce them, were well founded. I can recall working summers in construction in the early 1970s when local agencies for the first time began requiring straw bails and earth diversion berms on construction projects to control sedimentation. During the last 20 years, government regulation and the application of engineering and technology to erosion control have contributed to vast improvements in best management practices (BMPs).
The environmental lobby and political influence from anti-development groups have combined to place many state highway departments under the watchful eye—if not direct control—of state environmental agencies that are, to say the least, insensitive to project production and progress. Many contractors today complain that despite their efforts to install and maintain erosion controls, they are nearly always found in violation of environmental permits when silt migrates from the project, and they must incur costs of expensive cleanup and time implications from project shutdowns.
Tips to run with
I would like to offer two suggestions to contractors that are confronted with threatened environmental permit fines and contractual cost and time impacts associated with cleanups and project shutdowns. First, contractors must understand the mandates of the Clean Water Act (CWA) and those amendments aimed at silt runoff from construction sites, which require the institution of BMPs. It is insufficient for regulators to base a violation solely on the escape of silt from the site. They must be able to show that the contractor failed in its BMPs. BMPs include, among other things: (1) the selection of proper and appropriate runoff controls to address the particular construction site and the planned sequence of construction; (2) proper installation of erosion controls and “good housekeeping” during construction; (3) regular inspection and maintenance of erosion controls; and (4) record keeping of installation, inspections, maintenance activities and discharges.
To head off a potential violation, the contractor must be able to show that prescribed controls were in place and inspected immediately before a precipitation event that caused silt runoff. The best evidence typically consists of written inspection reports containing photos of critical control devices throughout the project. These inspections should be conducted regularly and at the close of business on the day before the arrival of inclement weather.
Second, contractors should use the same documentation described above to establish entitlement with the highway department to additional compensation and contract time resulting from cleanups and shutdowns associated with silt runoff. If the contractor can show through its documentation that controls were properly installed, inspected and maintained, the costs of remedial action to clean up silt outside of the controls should be borne by the department. Similarly, the contractor is entitled to any additional time it can prove was lost as a result of cleanup efforts and/or shutdowns that might have been ordered.
About The Author: Caudle is a principal in Kraftson Caudle LLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Caudle can be contacted via e-mail at [email protected].
