STORMWATER BOARD MEETING
MINUTES
August 9, 2004
I. Call to Order.
Doug Stein called the meeting to order.
Board members James B. Moegling and Ken DeFoor were absent.
II. Attendees:
James F. Hoff
Clyde S. Sawyer
Milton L. Jackson
Frank Douglass Stein
Ray Adkins
Mary (Cissy) May
Harry E. Tate
Also attending:
Naveed A. Minhas, City Engineer
William C. Payne, Stormwater Manger
J. Douglas Fritz, Water Quality Coordinator
Mike McMahan, City Attorney
Kimberly McClurkin, Stormwater Management Education
Roger Tudor, Exec. Dir. Of Associated General Contractors
Jenna Sells, Stormwater Management
Carolyn Fisher, Stormwater Management Secretary
III. Approval of Minutes for August.
Approved by vote.
III. Bill Payne gave a PowerPoint Presentation. (Made part of minutes by reference)
Enforcement –
What we do when there are violations of the Ordinance – Costs City money, threatens health, safety, environment of community, manholes, spill response, flooding issues.
Illicit discharges
Illegal discharge to the drainage system (Sections 7 and (of the Permit.
Court not very effective in past and Ordinance does not dictate we use court citations.
TDEC recommends we bypass environmental court.
Ordinance allows not less than $50, not more than $5,000 per violation, per day
Types of Enforcement-
Responsibility- for violations
Types of Inspection/Enforcement Cases-
Defining an objectionable color-
The State says water discharged off of a site shall not be objectionable (hard to determine)
There is equipment (meters) that read turbidity levels- Bill Payne proposed to the Board that if they are acceptable, agreeable, willing to define what they consider to be an objectionable color- we can assign a numeric value to that and be able to measure using these meters.
Defining an “act of God”-
Needing Board’s consideration.
Erosion and sediment controls are required in State of Tennessee to be designed for the two-year 24-hour storm event – equates in terms of inches and time into 3.6” over a 24-hour time period. We are trying to get a handle on this for ourselves as well as the contracting community. For instance, 1 ½” in 20 minutes – is this an “act of God”? We recommend the Board reviewing this to determine what action should be taken
Industrial Discharges-
Commercial Activities -
Residential Activities-
Enforcement protocol- (made part of minutes by reference)
Bill Payne went over the protocol with the Board.
Summary-
Requesting the Board – review the enforcement protocol. Make recommendations to us (too tough, not tough enough). However, the EPA and TDEC told us we must do more. Once the Board has reviewed this – make recommendations back to Stormwater Management – pass a resolution that the Board supports this protocol. This allows staff to convey the Board’s position when asked by violators. People have already asked what the Board will do if they appeal. There is a 30-day window where they can pay the civil penalty or appeal to us that they wish to appear before the Stormwater Regulation Board.
A question from Douglass Stein:
“When you are asking this Board to review this protocol, does that mean that you expect us to be proceeding without a protocol until the next Board meeting? Or, are you operating with this as your protocol for now?”
Bill Payne answered:
Right now, we’re operating under this protocol. We’ve been operating without anything being written since the Ordinance was passed back in ’93. What was written was the Ordinance itself. What we are trying to establish at this point is that protocol. We will continue to do enforcement based on what you see as a general guideline. And we have already established, some of this in the January, 2003, Clear Choice newsletter. We actually had similar protocols, specifically for construction sites because that was their emphasis when they (TDEC) when they were here in December of ’02 and issued the Notice of Violation in January of ’03. they seemed at that point to be concerned about construction sites the January, 2003, Clear Choice newsletter had similar protocols in it. and that copy of the Clear Choice newsletter had similar protocols in it.
Doug Stein:
“I think it’s important that we have a protocol. I’ll make that clear. My question is pointed at if the Board’s going to be responsible for defining a protocol, then we probably need to have a small committee that reviews this. I see Roger Tudor from the Associated General Contractors here. You might ask his group and other groups for feedback on this and read through this thing. I’ve got some feedback about some parts of it. We’ll go through a process forever if we don’t say ‘this is who’s responsible for defining what this protocol was going to be’. If we are defacto operating right now with this as the protocol (Bill Payne interjected – “Which we are”) which we are then we can approve it as it is or approve a process that by the next meeting, people come back with comments. Otherwise, this is going to be adopted as the protocol.
Bill Payne:
“You know what we’re trying to do. There are already mechanisms in place through the Ordinance that we can utilize. We’re trying to establish what that written protocol is and we’re trying to make sure that, between the staff and the Board that we’re all on a similar page in terms of trying to do that. We can proceed with collecting comments.
Doug Stein: “My guess is this is real close to what we’re going to end up with. I’m going to make a couple off-the-cuff comments. Roger, are you here for some reason, or are you here to just observe?”
Roger Tudor: “Mr. Chairman, I was notified of this meeting, being called a week or so ago that this… I wanted to see what,,,, if you go out and update and disqualify the Ordinance, I would like an opportunity to collect some of our members to get together to at least review and comment on the protocol.
Doug Stein: “And they’re not the only ones we should contact. I’m a contractor and everybody knows that and Roger’s the Executive Director of the Associated Contractors, but there are other groups that are affected here as well. And I know that when TDEC came in, they were looking at construction and that’s what prompted the protocol.
Bill Payne: “They’ve also gone with us to look at industrial sites.”
Doug Stein: “The Chattanooga Manufacturers Association might want to have some input on this as well. I’m going to make this observation…the way that the law is written and the way that contractors, manufacturers and commercial sites are used hearing this law is you can be fined $5,000 per day as long as you’re violation. But the way this protocol comes out, there’s only one place where that is brought up and the rest of it seems to be one-time fines. And I would say one of the things that is most egregious to me as a contractor is to watch somebody go out and start doing some work without bothering to get a permit. But the stiffest fine in this protocol is for somebody who is out there doing something and, maybe, haven’t been able to get through the plan or has a situation, I’m not sure what it is, but there’s where the stiffest fine comes in and somebody who starts disturbing the land without getting a permit, kind of gets a little slap on the wrist. It’s not a $50 fine like we used to have. Do you see what I’m saying?”
Bill Payne: “Yes, I think that is the kind of input we are trying to understand, just like on the objectionable color, what we’re trying to understand is you all are here to represent the community, to help us send the program in the right direction if there are areas that we need to change or modify, we certainly want to do that.”
Doug Stein: “Yes, I think that turbidity standards, having some sort of subjective criterion is what you need and I suggest that rather it being a turbidity number, at the outfall of the property it’s going to have something to do with where the water comes in and where it goes out. A lot of times, water coming onto the site’s not too clear either. It may have an objectionable color when it comes on. Although, I’m not suggesting that’s always the case. I’m just saying it can and if you get caught in a situation where you’ve got a number, a turbidity number, and that’s all you’ve got, you’re going to catch some innocent people along the way.”
Bill Payne: “Does the Board have any recommendation that they would like to make in terms of the changing on the amount of the penalty for starting without a permit?”
Milton Jackson: “I suggest that the Board have a opportunity to sit down and have a conference to themselves, to sit down and discuss the protocol and, that way, we all can be in one accord. Because, right now, some know about the environment. But there are many laws that we have to abide by. And, being a Board, we have to come under the jurisdiction of the law ourself. Because we can’t penalize someone without knowing, ourselves, what to do and what to say, cause it wouldn’t be just for us to penalize John Doe out there without us knowing. And I feel like the Board needs to sit down and discuss this protocol in a special meeting before we decide on what we do.”
Bill Payne: “This meeting can be used as that avenue if you choose for it to be and whether you take action on it today or whether you discuss it today and take action in subsequent meetings…”
Doug Stein: “I don’t think we’re prepared to take action on it today, because this is the first time we’ve seen this.”
Bill Payne: “Right, and it wasn’t our intent that you would take action on it today. We were trying to present the information so that you all can take it with you.”
Doug Stein: “I think you’ve done a great job. I don’t think anybody would dispute that. This would be, this is my suggestion and I’m making it in the form of a motion, that the City of Chattanooga continue operating now with this as a temporary protocol for enforcement, that each member of the Board be given a copy of this enforcement protocol, that we also send copies of this enforcement protocol to industry groups and associations and individuals and put it in the newspaper, if we need to. I’m not sure how we do that, make public notice that this is the protocol which we are contemplating adopting and welcome public input to it and ask for the input of these associations. And I agree with Milton, it would be a good idea for us to meet as a Board. Maybe we need to have a committee rather than the entire Board sit down on this. I’m not sure what the right number is. I’m envisioning this public meeting with a hundred and fifty people telling us why this or that isn’t fair or isn’t right. You can tweak these things forever if you get a big enough committee. I would suggest a smaller group rather than a larger one so that you can finally get something hammered out. It’s not going to meet with everybody’s approval whatever we do. And that we have a smaller group as a Board and that goes over the enforcement protocol and tweaks it, because I think we’ve got it mostly done. But there’s some issues here that need to be discussed by the Board.”
Milton Jackson: “You could bring in not all the manufacturers but the Director of the Manufacturer’s Association, and he represents the manufacturers. Just bring him in. And you have different heads of construction crews. Bring those in and various organizations. You would ask them to come if they are involved in the …. This community, just invite them, then, that way, you won’t have two or three hundred people.”
Doug Stein: “I think if we invite written comment, this meeting is a public meeting, right? (“Right”) So if we get written comment, that will help….”
(….”a place on the agenda for people to complain….”) Did you get that motion…did you get all that? (Carolyn Fisher: “I’ve got it right here on the tape”) Oh, good.
Ray Adkins: “Let me see if I understand this motion. What we’re going to vote on is a temporary protocol pending final approval of the future protocol. Are we going to set a time limit on it or anything for the final?”
Doug Stein: “I think we need two more of our Board meetings to do it I think we need to receive the public comments by the next Board meeting and decide on what we receive at that time. And, probably, appoint a committee, some members of the Board to sit down with the staff and finalize an enforcement protocol. And, in the meantime, we’re using this that has been submitted to us today as enforcement protocol.”
Ray Adkins: “I second.”
Doug Stein: “We have a motion and a second”
Question: “Bill, is the protocol what other municipalities are doing? Or is this strictly our protocol?”
Bill Payne: “It’s consistent in general with enforcement protocol across the City as well as similar with what the State does, in terms with their enforcement. Doug (Fritz), do you have any other comment?”
Doug Fritz: “Nashville is pushed to a system of similar penalties, I’m not sure of the individual amounts, but they are averaging $4,000 a month in civil penalties.”
Doug Stein: “Were they doing the same thing as we were with the court citations?”
Doug Fritz: “Nashville
does not have an environmental court like Chattanooga. Knoxville has been
issuing civil penalties now for a couple of years.
Cissy May: “It would be nice if we see some, a couple of other protocols, from maybe other places to see what they have in place, just kind of as a guide.”
Doug Stein: “My understanding of the motion which has been made and seconded, all that sort of input will be part of the public comment that we have invited.”
Bill Payne: “To be sure I understand what you would like to see is to have this enforcement protocol advertised at, basically advertised, not for this meeting, but for the second, well, I guess, for the next meeting that all written comments need to be submitted for consideration.”
Doug Stein: “This is the proposed protocol. You can tell the Associated General Contractors and the Home Builders and the Manufacturers Association and whatever other industry groups are effected.”
Bill Payne: “And, you want those written comments submitted by the next Board meeting.”
Doug Stein: “Invite written comments by the next Board meeting which I think is enough time. I’m not sure when the next Board meeting is, but I know it’s over a month away”
Cissy May: “Second Monday of September.”
Bill Payne: “September 13th.
Doug Stein: “It’s enough time. It’s not a book, it’s three pages.”
Bill Payne: “Right. That’s not a problem. We can do that. When we advertise that, you want us to advertise that a public hearing will be held at that meeting in September or at the following meeting in October? You want to have, you want to hold the public meeting next month as well??
Tape Break…inserted new tape…
Mike McMahan: “I would suggest we DON’T put it in the newspaper. It is too costly for a full page ad with such small interest and attendance”
Doug Fritz: “We could put it on line
Cissy May; (in agreement)”
Bill Payne: “We could advertise it and say it is available online or in our office if people want to comment.”
Doug Stein: “I agree with Mike and with Naveed both in a way. I think that if you get in a process where you invite everybody in the entire public to have input in a document which everybody needs to have access, but inviting them to do it is going to make it a free-for-all. It’ll make the process so unwieldy; you’ll never get finished. You want the input of the associations, people that are used to thinking about these things.”
Milton Jackson: “Well, do like we did. We turned to the community for the community to write in their comment. And you could use the media for that reason. They send those comments to the Board. That way, we won’t have everybody coming in. And we’d have everything we need right here.
Doug Stein: “Does the public know about these Board meetings? The public knows about this Board, right?
Bill Payne: “Right. They’re advertised in the paper just like Council meetings.”
Doug Stein: “What do they know about the Board? Just that it exists and it’s meeting today?”
Bill Payne: “Right. There was an advertisement placed in last week’s paper that stated that there would be a special meeting of the City of Chattanooga Stormwater Regulations Board on Monday, August 9th at 3:30 in this room at the DRC and signed by the chairman.”
Doug Stein: “You might add to the next advertisement that anyone wishing any input on the enforcement protocol that would be considered at the next meeting.
Bill Payne: “Okay.”
Doug Stein: “If anybody’s got questions let them come to the meeting. I want to be transparent, but I also don’t want to have a thousand people attending the Stormwater Board meeting just because they don’t have anything better to do.”
Roger Tudor: Said that the Association would like to comment on this to be reviewed before next meeting. They should be able to put something together in a couple of weeks.
Doug Stein: “Well I would encourage that. That’s why I suggested the two meetings for the process. One meet. The next meeting is also going to be the deadline for receiving whatever comments we get from anybody. And part of the reason for having the deadline be at that meeting is to allow the general public, not just the industries the opportunity for their input. Everybody should be considered together. And then between next meeting and the following meeting is when we’ll finalize. So, that’s my vision for the process.
Cissy May: “So the committee you’re talking about will meet after the next meeting”.
Doug Stein: “Right. We won’t after this meeting. But, everybody, in the meantime, everybody that’s on the Board, including the members who are not present, should get a copy of this enforcement protocol. And be made aware of this motion, should it pass.”
Bill Payne: “We’ll make sure and send to Mr. Moegling and Mr. DeFoor, copies of both the presentation and the enforcement protocol.”
Doug Stein: “The next meeting will be the deadline for the input and then the committee will do its work of finalizing this protocol.
Milton Jackson: “Mr. Stein, I have one problem with your proposition. And that is to limit the people that are making a decision to a committee. When this Board was appointed to represent the people and industry and people of the County or of the City, I think to come back and then limit it to a few people who make the decisions for the Board is not in keeping with the principals that the Board was set up for.”
Doug Stein: “I agree. I didn’t intend to say that the committee would make the decisions and if I did, please strike that from the motion.”
Cissy May: “Just make recommendations for the Board to approve.”
Mike McMahan: “Any action by the Board would have to be passed by your nine-member Board. You’ve got to have five votes.”
Doug Stein: “Right. It was not my intent that the committee would do that. I’m sorry. Well, we’ve had a motion and a second. Do we have any other hesitation or comment? Call for a vote all in favor? Opposed? Aye’s have it.”
Bill Payne: “At what point in time, Mr. Chairman, would you like to appoint the members of that committee?
Doug Stein: “Next meeting.”
Bill Payne: “At the next meeting.”
Doug Stein: “Ok. And the committee may be the entire Board. Everybody on the Board that wants to sit on the committee is more than welcome to. Alright, what’s next here? Bill, are you still on?
Bill Payne: “No, Sir, I believe I’m finished with everything I believe we’ve already gotten through items three and four of the enforcement as well as the civil penalty assessment schedule.”
Bill Payne: “Mr. Sawyer had mentioned previously, I don’t know if he still wishes to make any comments. He said he had wanted to take some time for other issues. I’m not sure if that would be for today or next meeting.”
Clyde Sawyer: “I wanted to see what the Board’s thoughts are on the meeting day and time. I noticed the first two meetings, we have had the privilege of getting out just at the right time to hit the traffic. And I was wondering if there was any thought about trying to schedule our meetings at a time that would eliminate that possibility, or do we have a problem with some members of the Board that this is as early as they can meet?”
Discussion among the Board members.
Meeting time was changed to 3:00 p.m. by consensus of the Board. Meeting day remains unchanged (2nd Monday of the month.)
IV. Adjournment.
Doug Stein made motion for adjournment………
The meeting is on two cassette tapes.