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In my Editor’s
Comments in May 2001, I first spoke of how many project
owners, tired of being the deep-pocket target of accident-related
lawsuits, were taking a very active role in addressing the
problem through the simple expedient of rejecting bids by
contractors and subs with Efficiency Modification Ratings
(EMRs) of greater than 1.0. (EMR is a comparison between all
organizations in a particular business. Less than 1.0 is better
than average; greater than 1.0 is worse.) The strategy, as
many of you know, is being adopted by an increasing number
of public as well as private entities, and already it is paying
dividends in safety statistics.
A Landmark Consent
Decree
The point was not lost to the water-quality people at the
EPA who decided that the fastest way to get their message
out was via those engaged in doing the most projects. Thus,
as the result of stormwater compliance litigation, the EPA
and Wal-Mart Stores Inc. entered into a consent decree that
not only will affect the contractors who work on its projects,
but is destined to impact all dirtmoving contractors as well.
In compliance with
the consent decree, Wal-Mart has promised to oversee stormwater-related
performance at its numerous construction sites and require
construction contractors to certify that they have installed
BMPs as shown on site maps prior to breaking ground.
Wal-Mart has initiated
a Storm Water Professional training program for general contracting
firms to which would-be contractors are required to send project
managers and superintendents to receive Wal-Mart’s Storm
Water Professional certification prior to being allowed to
submit bids.
The Storm Water
Professional training program includes a closed-book exam
requiring a grade of 75% or higher to receive a Storm Water
Professional certificate, which is then good for a period
of one year from time of exam. To date, the passing rate has
been 93%, and as of June 2005, there were approximately 2,900
certified Storm Water Professionals allowed to work or bid
on Wal-Mart construction projects.
Supervision of
construction contractors is equally rigorous. First off, Wal-Mart
is required to review a checklist of stormwater requirements
and issues with the general contractor as part of the award
of the construction contract. Further requirements include:
- General contractors
must designate project managers and two project superintendents
for each construction site.
- Project superintendents
must conduct stormwater pre-construction meetings with the
design civil consultants in attendance along with all ground-disturbing
contractors.
- General contractors
must hold weekly meetings with all ground-disturbing contractors
to discuss stormwater issues.
- Project superintendents
must perform daily inspections and submit weekly summary
reports.
- Project managers
and superintendents must perform bi-weekly inspections,
and perform monthly inspections in concert with Wal-Mart
construction managers.
- General contractors
must complete all repairs or modifications to BMPs within
48 hours.
- Wal-Mart construction
managers and project superintendents must perform a final
inspection of the site at the conclusion of the construction
project to determine proper cover and density of final vegetation
cover for permit termination.
Let the Force
Be With You
In its negotiations with Wal-Mart, the EPA stated that
it had two objectives with this consent decree:
- Assert compliance
on one of the largest developers and affect the greatest
number of contractors under one action.
- Use this consent
decree as a working model or template going forward for
other developers and contractors who find themselves out
of compliance.
The first has been
accomplished, and the stage is set for the latter. So in the
words of Wal-Mart’s Manager of Storm Water Compliance,
Shirley Morrow, CPESC, “If you are a developer or contractor
who may be under the EPA microscope or want to be proactive
to stay out of trouble, take a good look at the Wal-Mart program.
You may want to adapt it before the courts tell you that you
will be adapting it soon.”
Send
John an Email
GEC
- July/August 2005
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