Silt Enforcement Hypothetical

Suppose there are 8,000 active residential construction sites in southeastern Michigan this spring, summer and fall, all on average-sized city lots, all having excavations for basements with the corresponding piles of dirt.  Also suppose that there are 3,000 large commercial, industrial, public works or utility projects, each having disturbed the soil to a significant extent.

Further, let’s assume that on half of all such construction sites, no erosion controls have been applied, and on the other half, silt fence has been installed but not maintained; and after being run over by trucks, front-end loaders, skyhooks and the like, the silt fence no longer functions.

Say the weather is in the typical range with three major rainstorms over the construction season at any given site.  Assume further that during each of those heavy rains, each residential lot loses one ton of loose soil (equivalent to a pickup truck load) in runoff which flows into sewers, and each of the large commercial, etc., projects loses three tons.  Then, after three heavy rains, a total of 51,000 tons (51,000 pickup truck loads) of dirt have gone into sewers.

Unlike many cities the size of Detroit or larger in the past decade or so, insolvent Detroit was not required to build a huge tunnel to hold billions of gallons of storm runoff for gradual release, screening, settling and treating.  

Instead, in our region, a deluge that causes silt-laden water to surge from construction sites into sewers also causes the sewers and a handful of small retention basins to overflow into local ditches and streams, which feed international treaty waters like Lake St. Clair, the Detroit River and Lake Erie.

That means, in our hypothetical, during each construction season, 51,000 tons of eroded soil clog the sewers, cloud our natural waterways, and fill the bottoms of rivers, harbors and lakes with sediment.

Silt fence at Lowe’s costs construction contractors around $30 for a 100’ roll. (Two or three well placed rolls would probably suffice on most city lots).  Thus, if local (county or city) erosion control enforcement agencies forgo strict requirements for silt fence (paid for by contractors) in preference for county or city sewer vacuum trucks like the Vactor 2100 (at $350,000 to $400,000 each) to suck the mud out of sewers, the needless cost to taxpayers is inexcusable.  

Something’s wrong with this picture.

[Readers: Got better numbers?  Leave a comment.]

Open FOIA Appeal to OCWRC

In May and June of last year, I visited dozens of construction sites in a number of Oakland County communities and took photos.  Contractors at many of those sites had not applied any erosion control methods or had not maintained those that had been installed (mostly silt fence), contrary to state and federal water quality laws.  I saw dried mud leading from construction sites to the street and city sewers.

I reported what I had seen to city officials and the Michigan Department of Environmental Quality (MDEQ).  In those communities where the erosion control enforcement agency was the Oakland County Water Resources Commissioner (OCWRC), MDEQ asked OCWRC to investigate and report back.  There are indications that didn’t happen.  One of my inquiries into the matter is described below.

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Jim Nash, Oakland County Water Resources Commissioner:

This is an appeal of your FOIA coordinator’s denial of my FOIA request dated July 30, 2015, viz:

Pursuant to the Michigan Freedom of Information Act, please furnish me with electronic copies of:

1. the chicken scratch handed by OCWRC’s Don (presumably Houston) to OCWRC’s Joseph (or Joe) Gardner, referred to in Gardner’s email of July 10, 2014 to Cheryl Petroski-Wilson of the Michigan Department of Environmental Quality, Southeast Michigan District Office, which states, “Yes I did and Don had a chicken scratch that he handed me. I told him to clean it up so I could understand it, then give it back to me. I will get you our findings when he comes in this afternoon. Sorry I forgot about it.”
2. the cleaned up version.

I think I can prove that representatives of your office have been dodging OCWRC’s responsibilities as County Enforcement Agency (CEA) under soil erosion control laws and rules, rendering those laws and rules useless, permitting soil erosion, turbidity and sedimentation of lakes and streams within various International Joint Commission (IJC) Areas of Concern (AOCs) during combined sewer overflows (CSOs).

Furthermore, in denying me access under FOIA to records in your office that will substantiate my findings and conclusions, your FOIA coordinator relies on a non-specific, undifferentiated array of possible reasons for the denial, violating the purpose, letter and spirit of the statute.  

Her denial begins, “The information you requested...either does not exist, is not maintained by this office, or is exempt from disclosure, therefore your request is denied.”

Denial of a FOIA request in such a manner is vague, obscure, arbitrary and capricious, contrary to the intent of the Act.

Therefore, I urge under the strongest terms that you (1) disaffirm the coordinator’s denial, (2) furnish me with the precise justification for the denial, and (3) upon further inquiry on your part, provide me with the records sought in my original request.

-- Jim Lang

(etc.)

OCWRC Answers Blogger's FOIA Appeal

About a month ago, I made a FOIA request to the Oakland County Water Resources Commissioner (OCWRC), as well as the Michigan Department of Environmental Quality (MDEQ), for "...a copy of all records created or obtained by [agency] within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs [municipal enforcement agencies] and the lax enforcement by OCWRC in its role as CEA [county enforcement agency], as that rationale relates to Michigan waters and the public trust."

Earlier this month, OCWRC responded, "...documents understood to be requested... do not exist..." (emphasis added.) I took that to mean that there was no logical explanation for the double standard in water quality enforcement. But I had requested records, not merely documents. It occurred to me that OCWRC's response was, at least in part, incomplete or non-responsive to my request, so I appealed (see this blog, December 4), offering a little more rope with which to fashion a noose.

The appeal drew a letter from an attorney for the Commissioner, the essence of which was "... there are no records maintained by this office that satisfy your request."

Of course, such a record may have pre-dated January 1, 2014, but I seriously doubt it.

The Duty of Enforcement Agencies to Inspect Construction Site Runoff

Third in a Series

The Michigan Department of Environmental Quality (MDEQ) had written me (see yesterday’s post),

“The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.”

I wrote back on November 12, 2014, in part:

I’m troubled by this “when they become aware” and “if they have not personally driven by” standard.  Isn’t there an affirmative duty on the part of a Part 91 [municipal or county] agency to have a representative visit these sites routinely to determine whether or not the [erosion control] statute is being violated?  

Consider that, in all of these cases, the municipality will have a building inspector at the site on a  regular basis throughout the construction process. The building inspector can monitor disturbed soil erosion. It doesn’t take any special expertise to recognize evidence of silt runoff.

Neither MDEQ nor CEAs nor MEAs should rely on the chance that casual passersby will report violations.

So far, MDEQ hasn’t responded.

An October 2003 revision to Oakland County’s Soil Erosion Program provides:

http://www.oakgov.com/water/Pages/services/soil_erosion.aspx

“Each site classification has an associated inspection frequency as indicated on the following table.”

Class	Description	Inspection Frequency
Class 5	Project on a lake/ stream/ wetland/ open water of any kind and has a slope or discharge to these waters.	2 weeks
Class 4	Project on a lake/ stream/ wetland/ open water of any kind and has no slope (2% or less)	3 weeks
Class 3	Project is on a dry/wet detention basin with a sediment filter or on a retention pond	6 weeks
Class 2	Project is over 225 square feet and does not meet the requirements found in above Classes	7 weeks
Class 1	Minor Changes under 225 square feet of disturbance:  additions, decks, etc.	8 weeks

The positions of the state and county depend on the false assumption that silt runoff from construction sites into municipal sewers does no significant harm.  That assumption overlooks the loss of topsoil at the construction site and the costly consequences of sediment in the sewers, at the wastewater treatment plant and in natural water bodies receiving combined sewer overflows (CSOs).  

Those results are ongoing violations of the national Clean Water Act.  EPA and MDEQ ought to revisit this subject and require more frequent inspections and more stringent sanctions for violations.

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Next: Bringing the Issue into Focus with a FOIA Request

MDEQ Response to Blogger's Inquiry about Construction Site Runoff

Second in a Series

Below is the November 5, 2014 response of a Soil Erosion and Construction Storm Water Specialist of the Michigan Department of Environmental Quality (MDEQ) to my inquiry (see yesterday’s blog post) about silt runoff at construction sites:

Mr. Lang,

Thank you for your question regarding the legislative intent of Part 91, Soil Erosion and Sedimentation Control, as it relates to overflowing sewers and triggering Part 91, soil erosion permits.

I understand that you shared you’re [sic] the photos you shared with me with our Water Resources Division in Southeast Michigan earlier this summer.  [An MDEQ rep in southeast Michigan] indicated in her response to you that she referred the sites you identified to the appropriate soil erosion agencies for follow up.  [The rep] also indicated that the sites were not under permit because they were more than 500 feet away from a lake or stream and were less than 1 acre in total earth disturbance.  [The rep’s] note further indicated that the local enforcing agency was following up with those sites to ensure compliance with Part 91, but had indicated that the area was a combined sewer area; therefore the sediment reaching the road was being treated prior to reaching a lake or stream.

The Part 91 permit triggers identified Part 91 and the Rules promulgated thereunder are very specific and are identified in the Part 17 rules under Rule 1704(1) which states:

“a landowner or designated agent who contracts for, allows, or engages in, and earth change in this state shall obtain a permit from the appropriate enforcing agency before commencing an earth change which disturbs 1 or more acres of land, or which is within 500 feet of the water’s edge of a lake or stream, unless exempted in R 323.1705”

Rule 1701(d) and (k) go on to provide a definition for lake and stream as follows:

“Lake means the Great Lakes and all natural and artificial inland lakes or impoundments that have definite banks, a bed, visible evidence of a continued occurrence of water, and a surface area of water that is equal to, or greater than, 1 acre.  Lake does not include sediment basins and basins constructed for the sole purpose of storm water retention, cooling water, or treating polluted water.”

“Stream means a river, creek, or other surface watercourse which may or may not be serving as a drain as defined in Act No. 40 of the Public Acts of 1956, as amended, being 280.1 et seq of the Michigan Compiled Laws, and which have definite banks, a bed, and visible evidence of the continued flow or continued occurrence of water, including connecting waters of the Great Lakes.”

Given the precision of the language provided in the law and the rules in this regard, Part 91 does not generally require that a Soil Erosion Permit be obtained when working in proximity to storm drains or sanitary sewer drains.  Counties and municipalities may voluntarily elect to require permits in such cases by being more restrictive than Part 91, but must do so through an approved Soil Erosion Ordinance.  Some municipalities choose to do this by requiring permits within a certain proximity to a storm or sanitary drain.

That being said, regardless of where an earth change is conducted in Michigan and whether or not a permit is triggered, individuals conducting an earth change must comply with the provisions of Part 91 which generally require that erosion and sediment is minimized and prevented from depositing off-site or to waters of the state.  The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.  As [the rep] indicated, the Part 91 agencies for the sites you identified are following up on the information you provided to obtain compliance with Part 91.

I hope this helps answer your question.  For questions related to the cost of treatment and/or maintenance of combined sewer systems receiving uncontrolled sediment, I would direct you to [a 2nd rep] with the Southeast Michigan Office, as combined sewer systems are outside of my area of expertise.  

[Signature omitted]

www.michigan.gov/soilerosion

*****   Tomorrow: Is there a duty on the part of enforcement agencies to inspect sites?   *****