STORMWATER REGULATIONS BOARD MEETING

SEPTEMBER 13, 2004

MINUTES

Jim Moegling:        “If you would go ahead and sign in over there so we know who is here, so when we transcribe comments, we know who they came from. And, also, when you address the Board, if you would, please go over to the microphone so everybody can hear.

I want to welcome you to the meeting and, since Doug’s not here, I’ll still want to thank him for taking care of me last month.  I missed the meeting, so, I understand it was in good hands.

One of the things that, in addition to the agenda that we have that I’ve asked Bill to do. A couple of weeks ago, he made a presentation to the City Council about this program, the problems that are there, and where we are going.  A couple of things came out of that were tremendously important.  First of all, that we heard from TDEC. The Environmental Protection Agency that we are in non-compliance.  That is going to result, probably, in some sort of a fine, eventually a substantial fine.  We don’t know.  TDEC’s negotiating for us.  Right?  From that, you can very easily see the City Council is not happy with that situation, as Councilman Littlefield said, “That’s like punching money down a rat hole.  You get nothing for it”.  And that’s true.  They’ve been there before in some other programs.  They don’t want to see that.  This is not an easy problem.  I have asked Bill to make that same presentation, or at least, go over it for us today.  In terms of the things that we are deficient in, what he showed the City Council.  This program has changed emphasis as Bill will tell you, in terms that we are going to emphasize water quality.  The Council was very adamant that, their biggest problem is flooding.  When somebody gets water in their basement, they get upset.  And to a great extent, that’s been their emphasis of trying to keep up with that.  That is going to change.  This program is going to take a higher profile in what it was meant to do when the Clean Water Act and Water Quality that was mention in our first meeting is going to be emphasized.  So, it’s not an easy program.  It’s going to get more emphasis.  It’s going to get more publicity, possibly a good part of it not positive; because, it’s potentially expensive and we’re going to have to pay for it.  That may mean an increase in the funds for the program which comes back for the City Council, or whatever, for a higher fee.  So there are some things coming down the pike that are very important and the City Council is well aware of it.  Okay, Bill will give his presentation before we get into the civil penalties appeal, but, to start off with, I have a copy of the minutes from the last meeting.  Of course, I wasn’t here, but I would like to have a motion and second to accept the meeting minutes as written or correction from anyone that would like to make corrections at this point. (Motion and second)  Everybody please indicate by saying “Aye” if that’s acceptable. (“Aye”). The ayes have it, so the minutes are accepted as written.  Okay, Bill, I guess the next item is just that, the presentation that you gave to the City Council.”

Bill Payne:   “Yes Sir.  Thank you, Mr. Chairman.  This was a presentation that we gave to the City Council’s Public Works Committee meeting on August 31^st.  It was an update to them.  We did ask members of the TDEC’s local field office to be there and there were two members of their office present and Mr. Moegling was also to represent the Board and make some comments on that endeavor as well.  We reviewed with them what the Stormwater system is. There is an NPDES Permit in the City of Chattanooga, that there are eight major watersheds.  There are over five hundred miles of stream.  We estimate approximately twenty-two hundred miles of major drainage system, channels, roadways, pipes, that type of thing.  There are seventy-five thousand estimated stormwater structures. We are in the process of inventorying those now.  Five hundred and eighty-eight outfalls.  Two hundred and nineteen of those are actually outfalls where the City’s drainage system enters into “Waters of the State” that we are required to take action to monitor those as well as ten in-stream monitoring locations.  The event timeline - and this is information we have gone over in the past – we have had the Permit since ’96.  We have been inspected twice, both in December of 2002 as well as May of 2004.  Both of those resulted in reports back on the status of our permit.  The first one being a Notice of Violation.  The second one being an update.  Both times, EPA was present in those inspections and in July, 2004, EPA sent what was called a Section 308 Request for Information Letter.  That letter encompassed not only Stormwater and our permit, but also encompassed the sanitary sewer system, combined sewer system, as well as operation of the waste treatment plant.  So that was a combined effort between Stormwater Management and the Waste Resources Division.  Our part was only because they had been here and inspected our documents.  We didn’t have to send a whole lot of copies of ours, but Waste Resources, it was about a seventy-five pound box that had to be Fed-Ex’d to Atlanta to include the copies of all the documents, or examples of the types of documents they keep, because they were looking for information going back approximately five years on them.  And in some cases, we had to go back as far as ’93 in some of our response.

Just to summarize some of the violations that were in that January, 2003 Notice of Violation from TDEC and our efforts; our efforts are shown in blue on the screen.  The system-wide public education program: was one of the issues.  We did hire a full-time Education Coordinator beginning in FY ’04, so, about fifteen months ago. As a result, all the public education requirements are now in compliance.  The system inventory: what we call the As-Found project is underway to collect all the inventory data by September 30, 2008, and we have supplemented that program with in-house staff to collect some of the core information.  We’re calling that the inventory project which will be completed by December 31 of ’05.  Developing and enforcing maintenance on private detention ponds: there was a manual that was developed and placed online and all owners of private detention were notified in November of 2003. We are preparing a contract now to supplement our staff with some contract staff to help us with making those inspections.  Master planning efforts: We have defined what those efforts will be and completed the prioritization of the watersheds.  And the priority watershed will be completed by the end of March, next year.  One of the ones that was listed was Evaluation of ‘Best Management Practices’ – that was for the City to actually do the research.  One of the things that we negotiated with TDEC was that, rather than the City trying to continue to do that on our own, we have joined the Water Environment Research Foundation.  That allows us to pool the money that we pay to join with other municipalities and agencies that are also join.  They are able at that organization to fund large-scale research projects, larger than any one of the member agencies could do on their own.  Industrial Guidance Materials: - Another area that we needed to work on.  There were a guidelines placed online in April of this year and the Industries in town were notified of the availability of that.  Industrial Site Sampling – That was another area where we had had a lot of discussions with TDEC as far as exactly what the requirements were and when did we need to sample and we had held off on doing some of that while we waited to get some answers back from them on some of our questions about that.  We were compliant in that requirement for the first time for the 2003 Permit year and it is an annual requirement and that annual sampling is continuing.  Field Screening earlier about the outfalls.  There were 588 total and 219 of those drain our system directly into the “Waters of the State”.  Those 219 are required to be field screened every two years, once every two years at each of the outfalls.  All the field work was completed this summer and we are compiling that data for submission to TDEC by the end of October.

In addition the violations, there are also some recommendations that were included with the Notice of Violation to review and update the Ordinances.  One of the ones that was actually first on that list that we have taken care of was revitalizing and revamping the Stormwater Board – the rolls and responsibilities.  You are aware of that, the Ordinance revisions for that had taken place prior to your appointments in March.  There are also some others that are being considered that the staff is reviewing right now.  Detention pond maintenance responsibility as well as some other areas to re-align with some State requirements.  Those are some issues.  We will bringing to you as a Board to look at those, review and make recommendations that can be submitted to the Mayor and the City Council along with staff recommendations on those at points in the future before any action is taken on them.  Enhancing enforcement capabilities: - We have talked about civil penalties.  At last month’s meeting, we talked about the enforcement protocol.  That’s also on this month’s agenda as well.  That enforcement protocol and the civil penalties are areas that we are using in order to improve our enforcement, because that was one of the areas that, while we did have some enforcement, it was lacking during their review.  Increasing self-inspection reporting: - Anyone that gets a Notice of Violation for issues that have to do with their erosion and sediment controls, we require that those people submit those on a monthly basis as opposed to the annual basis.  Hiring additional staff: - was also another one of their recommendations.  From a management perspective, currently, as the Stormwater Manager, I’ve been overseeing both the drainage and the water quality and as the Chairman indicated earlier, the City Council obviously was concerned about the drainage.  And, because that pulls at the management level so many different directions, there has been authorization to add an additional manager that will only look after the permit related issues and that position is available for this budget year.  I mentioned earlier about the Education Coordinator that was hired in the last budget year to assist with doing the field inspections because the way we have our current staff is overloaded, there are three new soil engineering specialists positions that are authorized this year.  We’ve got one that has already been hired and is already on-board and the other two are still open.  Plans review: - at the time they were here back in December of ’02 that was an area we did not have very technically trained people who were doing that.  We did have a full-time person, but they did not have a technical background doing stormwater review.  We now have two that are full-time working on that.  One is a Professional Engineer and the other is an Engineer in Training.  Both do have the necessary technical background to be able to fulfill that.  And then, the Permit status: - and this is a section that we will start to include in each of these Stormwater Board meetings just on this particular area just to bring you all up-to-date on our activities when this Board meets.  There are 149 permit requirements as of the end of August.  Eighty-nine of those are complete.  Forty-three are annual activities that are on-going.  And then there are 15 in progress and 4 future activities that will come on the heels of those in progress activities.  Additionally, what are some of the Challenges?  We talked to the Council about that maintaining compliance for all these activities that we have yet to do that we are trying to work on.  In addition, we also have to maintain compliance on all the on-going activities.  We have a commitment to meet 100% of all the deadlines that we have committed to with TDEC.  We have submitted a compliance timeline to them for the dates that we will meet on all those remaining issues that was actually submitted earlier in the year, back in March and April and was negotiated into May and June in terms of those deadlines.  Obviously, in order to do that, we will have to manage all the resources that we have available to us.  That was the presentation and the update that we gave to the Council on the 31^st of August.”

Jim Moegling:        “Thank you, Bill.  I think it is worth it to the Board to define the items that we have, particularly the ones that are open that are not in compliance and how we stand on this, what our plans are to fix them.  Essentially, how are we doing.”

Bill Payne:   “Yes Sir.”

Jim Moegling:        “One more comment I heard from the City Council and I’ve been there.  I felt like it was 20 years ago, 30 years ago.  Lamenting the fact that now any small stream, especially the ones that are identified here, you just can’t go do things.  Regulation ties you in knots.  Regulatory permits, now you go to the EPA and TDEC, the Corps of Engineers, on and on and on.  Their frustration was, ‘Is this program just growing on itself?’  And the answer, ‘Is it going to get better?’ No.  I’ve never seen a federal regulation that got simpler.  So, that’s just my personal opinion.  Now that’s the way it is.  That’s done at the federal level.  Bill isn’t asked whether he wants to comply or not.  He will, or Chattanooga will be fined.  So, it’s not going to get any easier and it’s a different environment to work in.  So I’m sure you guys have felt that already and it’s not going to get better.  Any comments from the Board on the briefing from Bill, any questions?  Anybody have any questions?” 

Appeals:

Jim Moegling continued: “Ok, the next item we have is the civil penalties appeal.  Bill, you’ll have to tell me how we approach that.  Do you make a presentation and then that, or visa versa?”

Bill Payne:   “Yes Sir that is what I was going to do.  We have a presentation that is prepared and in the green folder that each of you has on the right side of the folder is a copy of the presentation that’s already been printed out for you.  You can make notes on that.  What we will do, at the beginning of that will be an overview of civil penalties – kind of where we stand at this point and we have two that are on the agenda.  We’ll go through each of those, present our recommendations and the violator will have a chance to be able to make their comments as well on that.  On one of them, I do not believe that we have anybody here.  It’s actually one that we’re in support of their appeal.  And we’ll go through those.  We do have on the right side of your folder is not only that presentation, but there are also copies of back-up material about each of the cases that are in there.  You’ll see on the screen the first slide that is in your handout is just so that you’re aware, civil penalties have been collected as of today or, I guess this is really more a status update.  We have two that have been issued and we have received payment on those.  So they did not appeal.  You will not be hearing about those.  That’s one from ADM and another from Place Properties and you see the amounts there.  There’s one that is current now which is Meyers Brothers Properties, LLC.  That actually is the Wal-Mart out at Lookout Valley.  We had received a complaint and they had actually done some work without a permit and gotten started on that.  So that civil penalty is in the amount of that permit.  We did have a show cause hearing with them last week and they are going to pay that.  That is what they indicated in that show cause hearing.  They’re still within the 30-day time line, though, to either appeal it or pay it.  But, at this point, we expect them to pay that one.  Just for your information, there is one in the overdue category from Tigner Wrecking Service for doing a demolition without a permit.  Underneath the current enforcement protocol, we issued him the civil penalty for $105.00 for the permit that was not purchased.  He has gone past the 30-days that he had to appeal to this Board and he has not submitted his payment.  We will now be turning that over to our City Attorneys Claims Investigation office for collection for them to pursue that.  And then there are two appeals that are listed on today’s agenda and we will go through those now.  Any questions on the collected, the current or the overdue?” 

“The first on the agenda is the Wes Blakemore Trucking.  There are two addresses associated with this:  3613 Calhoun Avenue and 3107 Dodds Avenue.  The timeline associated with this enforcement case is beginning with the Calhoun Avenue address on July 16, 2004, our inspection revealed a demolition that occurred without the purchase of a permit.  There was a permit purchased with that address listed on it two weeks later on July the 30^th .  Subsequent to that, on May 25^th of ’04, there was a permit purchased for a demolition at 3107 Dodds Avenue.  The street numbers in here will become evident.  That’s actually the key to this particular appeal.  On July 21^st, our inspection revealed demolition at 3107 Dodds Avenue.  However, what happened in the course of translating the physical property, since there was no longer a structure at that particular piece of property, there was not a physical address at that piece of property.  When our inspector came back in, they accidentally pulled off the wrong address for this particular demolition and associated it with property at 3109 Dodds Avenue.  That property at 3109 Dodds Avenue – the building, the structure is actually still standing.  So, based on those two events at those two addresses, underneath our enforcement protocol, the first violation at 3613 Calhoun was their first violation.  They did receive a written warning for that, however, we did not assess any additional civil penalties because they did purchase the permit, which, under the enforcement protocol was the amount of the damages.  And the amount of the civil penalty underneath the current enforcement protocol was the amount of the un-purchased permit.  Since they did purchase the permit, we did not issue an additional civil penalty for that.  The second one for 3107 Dodds Avenue appeared to be a second violation again because we incorrectly transferred the address over whenever we wrote up the second letter.  We were actually writing up both these at the same time – actually wrote both letters at the same time frame.  So, based on that, we had a $500.00 civil penalty as well as a $105.00 for an un-purchased permit for damages to the City.  However, the permit actually was purchased and the property that was torn down was the permitted property.  And so the error in this case was on our behalf as the staff – you’ll see a copy of their request for the appeal which placed it on this agenda.  We did require even though it was a staff error in that, we did feel that it was best that we follow through in our procedure and have them submit an appeal and for us to present this information to you and have you as a Board take action on this to clear this second penalty be dismissed without prejudice to Blakemore since the error was the City’s.  That’s all we have and I don’t believe we have anybody – do we have anybody here from Wes Blakemore?  Ok, we do not, so that’s all the information there is, so at this point we ask for the Board’s pleasure.”

Jim Moegling: “Any comments from the Board?”

Ray Adkins: “Let me ask a question here:  On the first violation”…

Bill Payne:   “Yes, 3613 Calhoun Avenue”

Ray Adkins: “I know it’s a violation, but is there a grace period on purchasing the permit with the increase in cost?  Or, does it have to be purchased prior to the demolition?”

Bill Payne:   “City Ordinance requires that permits be purchased prior to performing a demolition.  They’re required to have both a Land Disturbing Permit for the demolition as well as a Building Permit for demolition.  And so they are required to have both of those in place prior to performing the demolition.”

Ray Adkins: “I didn’t know.  I thought maybe there might be a late charge for purchasing the permit.”

Bill Payne:  “No sir, there’s not anything in the Ordinance that prescribes any type of a late charge for that particular one.  There is one section for doing fill in residential areas that the Ordinance allows for the Land Disturbing Permit fee in that particular case for starting work without a permit we double the penalty.  But it only applies to that one limited segment of the Stormwater Ordinance.”

Jim Moegling:  “This appears to go right along with what I see in our enforcement protocol is written now.”

Bill Payne:  “Yes, that is correct.”

Jim Moegling:  “Any additional comments from the Board?”

Ken DeFoor:  “Bill, let me make sure I understand.  At 3613, is there a violation?  And there was and there was a written warning and the permit has been purchased?”

Bill Payne:  “That’s correct.”

Ken DeFoor:  “For Mr. Theobold??

Bill Payne:  “No, sir, this is for Wes Blakemore.”

Ken DeFoor: “Okay, Wes Blakemore.”

Bill Payne:  “Yes, sir.  They are not appealing the 3613 Calhoun Avenue.”

Ken DeFoor:  “Oh, they’re not?”

Bill Payne:  “Yes, sir, it’s only for the one on the Dodds Avenue address.  They have purchased the permit for the 3613 Calhoun and that was allowed to stand since there was no damage to the City.  Our current enforcement protocol as it is written right now calls for a written warning for that first offense and for damages in the amount of the un-purchased permit.  But, since they purchased the permit, there were no damages.”

Ken DeFoor:  “Okay, thank you.”

Bill Payne:  “Yes sir.”

Jim Moegling:  “Okay, I would like for someone to make a motion that the Board has requested we dismiss this penalty.”

Who??:  “I’ll make a recommendation that we take the staff recommendation.”

Jim Moegling:  “Do I have a second?”

Who??:  “Second.”

Jim Moegling:  “Those in favor, please say ‘aye’.” (Ayes were spoken)

Jim Moegling:  “And those opposed?  Ayes have it, so we record that we have dismissed this penalty.  Along that line, Bill, I understand the need to bring it here, but, in general, should we write something and allow you to dismiss those penalties in case of errors like that, or, would you prefer to bring it to this Board?”

Bill Payne:  “I think at this point we can operate either way, if it’s the Board’s pleasure that in those cases that you grant that authority, then we can certainly act on that.  The ordinance states that once we’ve issued the penalties that they appeal to you, so we did not want to do anything in this case without presenting it to you all.  If that’s an action you all choose to take in the future, that would be appropriate.”

Jim Moegling:  “I’d like for us to discuss that.  I see no need to beat a dead horse to death, bringing something to the Board if it’s truly an error.  That seems like overkill.  We’ll let the Board talk about that and if we do, we adjust the Ordinance, right?”

Bill McDonald:  “Bill, can I speak to that?  Those of you that don’t remember, I’m Bill McDonald.  I’m Administrator of Public Works.  I think that in the case where we have actually made a mistake, and there might be some other specific situations, that you give us the authority to do that.  I wouldn’t want a blanket authority to do that.  I think that gives us too much leeway.  But, in situations where we have actually made a mistake like that, then maybe it is appropriate that you do so.”

Jim Moegling:  “Yeah, and we could talk about that, Bill, in terms of even if you do, you might want to come and say ‘hey, we did this’ and tell the Board after the fact.”

Bill McDonald:  “Right, just report it to the Board.”

Jim Moegling:  “Yeah, if it’s truly a mistake, then there’s no reason for us to waive it.  But, again, sounds like we need to do something with the Ordinance if that’s true.”

Bill McDonald:  “Yes, that’s possible.”

Jim Moegling:  “We’ll keep that as an action item.  Maybe we’ll make a recommendation to adjust the Ordinance.”

Bill Payne:  “And it may also be something that can be addressed underneath the enforcement protocol as part of the comments with that.  That may be something else that could be addressed.”

Jim Moegling:  “Okay, on to the next.”

Bill Payne:  “The second case which is on the agenda today is for Chris Theobold of CT Construction.  The address is at 1713, 1719 and 1801 Glenroy Avenue.  And Mr. Theobold is present today for this meeting.  This is a map of the area.  It shows there are four properties that are owned by Mr. Theobold.  The red indicates a new single family home that was built on there.  These other three are currently vacant properties and there are other existing single family homes farther downstream.  The contours in this case are following from the lower part of the screen towards the top of the screen.”

Jim Moegling:  “Can you tell us where this is?”

Bill Payne:  “This is over off Altamont Road in the North Chattanooga area between Altamont and where Chattanooga High School is.”

Jim Moegling:  “Thank you.”

Bill Payne:  “No problem.  This is a timeline of events that have occurred to this point.  In April of 2003, there was a building permit issued for a single family residence at 1707.  That is actually the property where the new home was constructed.  We have, as you can see in red we have received some complaints on that in May – actually that first one says May of 2004.  Actually it should say May of 2003.  That was the first complaint that we got.  There was a written warning issued on that date.  We then received additional complaints from June, July and September of ’03.  There was a Notice of Violation that was sent to Mr. Theobold in November of 2003.  There were then subsequent complaints in February and in May of 2004 and a second Notice of Violation was issued in June of 2004.  We have had additional complaints in June and July as well as written response from Mr. Theobold.  There was a compliance order and an issuance of a civil penalty assessed to Mr. Theobold on July 9^th of this year and in August of this year, City crews actually constructed a 320 foot asphalt berm.  It says along the property line.  It was actually constructed along the edge of pavement right there to prevent some of the road run-off that was going through Mr. Theobold’s  property.  As far as our enforcement summary, we have issued one written warning, two Notices of Violation as well as a compliance order with civil penalties.  I mentioned earlier that the property previously, prior to the construction of this home at this address, the run-off was actually leaving Glenroy Avenue and going through this property as well as some run-off from these adjacent properties behind, before it came down to this first home on the north and then entered back in Glenroy Avenue.  There is not currently a drainage system installed along Glenroy Avenue.  That was the area where the water was draining prior to the beginning of construction.  You can see in this picture that is here on the top left, there is a curb line, an extruded curb that was installed by Mr. Theobold during construction.  And then subsequent to that, you can see where that water no longer came through the properties and then it came down around the front. And once it left the pavement, you can see in the picture on the top right where it started to travel along the shoulder of the road and across and into the property.  And then on the bottom left, you can see where that was continuing to move into Mr. Theobold’s property.  And then on the bottom right, that’s the silt fence that was down along the adjacent property line on the down stream side.  These are pictures of his erosion sediment controls from each week subsequent to the issuance of the Notice of Violation, civil penalty showing the status on those dates.  July 9^th, the 28^th, August 2^nd and August 12^th.  There were actually two violations; one for erosion and sediment controls as well as for stabilizing the bare soil that was on the site.  These, again, are pictures that were taken on subsequent dates after the issuance of the compliance order and the civil penalty.  As I said, in August of 2004, City crews went out there and installed 320 feet of curb along the property.  Cost the residents of the City of Chattanooga $723.01 to eliminate that problem, basically by continuing to channel that water and not allow it to leave the roadway and allow it to be able to continue down Glenroy Avenue.  So by doing that, it prevented the erosion problem that was there.  Violations to the Stormwater Ordinance include in Section 31-324 Permanent or temporary soil stabilization must be applied to the extent feasible within seven days on any area that is going to remain unfinished for more than thirty (30) days as well as neighboring persons and property shall be protected from damage.  There was sediment discharge onto the downstream properties as well as all surface water that flows to the construction area shall be (and this is from the Ordinance) shall be diverted using berms, channels or other sediment traps necessary in order to prevent those.  And then Section 31-324 is a section providing the Stormwater Manager to issue those orders which was the compliance order that was issued.  So far, penalties to date, failure to properly utilize erosion control from June 19^th through July 9^th at $100.00 per day, that’s from the second Notice of Violation. There were time frames associated with that and it was stipulated in there that if those time lines were not met, the civil penalties would begin and the rate of that civil penalty was stated in the Notice of Violation.  For those days, that comes to $2,100.00.  Failure to properly stabilize the site from June 19^th through July 9^th; $250.00 per day for $5,250.00.  Beginning on July the 10^th, those amounts changed and those were also stipulated in the Notice of Violation.  Failure to properly stabilize the site from July 10^th through July 26^th.  I’m sorry; those increased rates began on July 26^th.  That was also $250.00 a day for $4,250.00.  And then beginning on July 27^th was when the increased rates began.  July 27^th, this goes through today at $1,000.00 per day.  Totals up to…obviously, this is current, $49,000 and then failure to submit the required inspections, the Monthly Self Inspection forms for July and August.  Those were also stipulated in there at $500.00 per month for $1,000.00.  At this point, the total assessed penalty is $61,600.00 plus the damages for the City to install the berm, $723.01.  So, in summary, the City did not receive any complaints on this site prior to the building permit being issued.  We have had ten (10) complaints since that point and time.  We have issued one (1) written warning, two (2) Notices of Violation before assessment of civil penalties began.  There was a continued failure to respond to those required actions which has resulted in the continuation of these accumulating penalties.  The City corrected the problem which was created by the construction of the home at a cost of $723.00.  At the time we prepared this, which was last Friday, the site remained unstabilized.  I think Mr. Theobold has taken some steps on that today.  I’m going to allow him to address that at this point.  These are the pictures as of this morning on the site showing the current state as of this morning with the – what time were those pictures taken, Doug?”

Doug Fritz:  “About nine-thirty”.

Bill Payne:  “About nine-thirty this morning.  At this point and time, that’s the conclusion of the City’s presentation on this case and I think Mr. Theobold is here.”

Jim Moegling:  “I’ve got one question before you go on.  What is the potential for this penalty to continue?”

Bill Payne:  “At this point, once the site becomes stabilized, that will be the end of the accumulating civil penalties.  If the work that Mr. Theobold has done today solves that issue, which is what we were after, then the civil penalties would stop accumulating at that point.  And at this point, that’s the history of what’s happened.  And at this point, Mr. Theobold is here to present his case.”

Who??   “When did the City put in this berm?”

Bill Payne:  “It was, I believe, the second week in August.  I believe in your packet there is a print out of the work order system. It was indicated completed on August 18^th; it was done, roughly, in a week’s time.

At this point, Mike McMahan joined the meeting

Jim Moegling:  “Okay, if you would, please sign in and do so.”

Mike McMahan:  “Mr. Chairman, Mike McMahan, I would point out, I’m sorry..”

Jim Moegling:  “I’m sorry, Mike.”

Mike McMahan:  “I’m sorry I’m late, but the Ordinance does require also that testimony before the Board be sworn and the Chairman and Vice-Chairman are authorized to administer oaths.  Since Mr. Payne has already testified, you can ask him to swear or affirm that the testimony which he has given is true to the best of his knowledge, information and belief.  Then Mr. Theobold will have the opportunity under standard due process procedures to ask Mr. Payne any questions he wants to.  And then Mr. Theobold could be given the opportunity to testify in person under oath having other witnesses he would want to have testified in person under oath.  So, if you could, administer the oath to Mr. Payne.”

Jim Moegling:  “Well, if I can remember the words…”

Mike McMahan:  “Do you swear or affirm the testimony you have given is the truth, the whole truth and nothing but the truth, so help you God?  Do you do so?”

Bill Payne:  “I do.”

Jim Moegling:  “Thank you.  “Mr. Theobold, are you here?”

Mr. Theobold:  “I’m here.”

Jim Moegling:  “Again, do you swear that this testimony is true to the best of your knowledge, information and belief.”

Mr. Theobold:  “Yes.”

Jim Moegling:  “Thank you.”

Mr. Theobold:  “I don’t know where to begin.  I thought I was here for a $7200 dollar penalty and after seeing that, I’m just kind of floored.  This problem has been existing prior to me doing anything.  I’ve got a letter here from a lady who lives at the property right below it for y’all’s information.  The area is just – it contours right to the lady’s house.  Prior to me doing any construction, there was no curb down the street.  I put the house in.  The water coming down the street just ran straight into the property.  I built a retention area myself with a track cat.  Within forty-five minutes of a bad rain, it just filled the retention pond up and kept breaking out.  I don’t have a lot of money.  I finally got the house sold.  I’ve got enough money to get back in there and stabilize it, but, I don’t know, I just can’t control the stormwater that was coming off the street.  I met with Bobby Quinn on several occasions.  He said ‘yeah, we have to design an underground system for this neighborhood and we do need to put up temporary curbs’.  I don’t know where the curb would be my fault, but I’ll take the blame for the $723.00 if that is what y’all feel I need to do, but I don’t know what else I could have done to keep controlling.  I’ve just put thousands of dollars in.  The water is coming from the street through the property…basically just going into the retention pond, bursting the retention pond out, going down through the lady’s yard.  So, I’m at y’all’s mercy.  I mean I don’t know what my rights are as far as seeing a $69,000 penalty issued to me.  Do I need to get an attorney or where do I need to go from here?  I mean, can it be passed until I can get my ducks in a row?  I’ve got two other people down the street writing letters on my behalf.  The people that were complaining were, I believe, Matt Sizemore.  Some of the sediment was coming from that lady’s back yard as well as the front yard.  It was just leaving a little gravel in front of him.  He was having issues with the people speeding up and down the road and getting in the gravel and not being able to stop.  He has children which uh I’ve done everything I could with the money I’ve had to be able to keep that thing stabilized.  But when you’ve got 100,000 gallons of water coming from the street into your property, there is nothing I could have done at that point.  I probably should just have spent another couple thousand dollars and ran a curb down the street, which would have helped it.  But, as of today, they have been over there working all weekend and they have got the ground stabilized.  They are putting seed and straw on it as we speak.  I’m putting up more retention.  We’ve added more retention area.  We have put more silt fences up.  They are being installed later today.  (laughing) $69,000.00…I was under the impression that it was $7200.00.  So, I don’t know what my rights are at this point.” 

Jim Moegling:  “Well, it is my understanding, if you will help me along that line…the Board will approve or not approve.  And then you have the right to go to a court.  Is that correct? 

Mike McMahan:  “Yes. If you will tell me why it was your impression the maximum fine was $7200.”

Mr. Theobold:  “Just for the fact that that’s what I’ve got on this sheet here”.

Bill Payne:  “I can probably address that.  That was the amount that was listed in the initial compliance order.  When the first Notice of Violation was issued in June of 2004, there was a time line that was set up for doing two things: One was installing and maintaining sediment controls on the site.  The second issue was the soil stabilization.  Both of those had monetary amounts that were associated with them when we issued the compliance order and the civil penalty, that was the amount of the penalty at the point when we issued the compliance order.  Those civil penalties were listed per day per violation…or per day that the violation continued.  Once Mr. Theobold did the work for the erosion and sediment control issues, those penalties stopped accumulating, once those issues were taken care of.  And I think that our concern was the site was not being stabilized.  There were some issues there with the curb that ultimately the City did address, but there were large areas of the site that were not stabilized and had not been stabilized until this point.  So that is the reason why those penalties continued to accumulate.  And that is the reason why Mr. Theobold is thinking that that was the amount, was because that was the amount that in the initial assessment”

Mr. Theobold:  “I did receive that penalty. I did get over there and built up the retention area.  That Saturday, a forty-five minute rain came in and completely filled up the retention area before that curb was put in and it just blew out. I mean, the rain came and that forty-five minutes was enough from the street to completely demolish everything I had worked to get done over there.  And at that point, I mean, I’m just trying, I’m trying my best to keep that stabilized.  I guarantee it won’t do anything now, because the curb down the street just pumps all the water down the street.  I mean, there’s one storm drain on that street and that’s down on Altamont.  The lady that has been living right below me, she’s been awesome.  I mean I’ve gone in and dressed her yard up.  I’ve spent over $2,000.00 correcting this issue.  I’ve got her yard dressed up. I’ve got a slope away from her house.  It has been coming through her front yard right there before I even did any kind of work over there on that property.  I mean, it has been washing sediment out prior to me being there.  I’ve tried to control it.  The City has come in and put the curb in, laid the dirt down, didn’t put any seed, no straw on it.  So, basically, the next rain that comes through, I’ve got a spillover that is going to have to come to that one area.  That is the only way the water can leave the property.  I mean, I’ve exhausted every avenue I can except for …. I don’t know what I can do at this point.  $69,000.00 penalty… I mean, I don’t know…”

Milton Jackson:  “Is it possible you could put a drain up or near the property, put a couple of drains there to catch all the run-off?”

Mr. Theobold:  “My idea, I mean the engineering department has to engineer a system, but I think there has to be an underground culvert from the rear side of the lady’s house to the front side right there needs to be a spillway that goes in right there.  And somehow, the water needs to work to this one corner or it is going to continue washing out that one corner of her yard.”

Bill Payne:  “If I may point out that our issue is not with the route and path that the water is taking, it is not with the water that crosses over, the adjacent property that is downstream.  Our issue is with the fact that the work had been done, completed, and looking back at the pictures, the one lot where the house was built was stabilized with sod, but the remainder of those three additional lots were not stabilized and that is the issue that the penalty was issued for.  Not really for drainage infrastructure or lack thereof.  There is not really a way to install a drain.  Our penalty was aimed at the soil stabilization which had not been performed.”

Mike McMahan:  “Mr. Chairman, I would note this letter which he has handed to me does reflect that the civil penalty $7,350.00 at time he received this notice. And if he is under the understanding he is here today to defend against $7,350.00 and comes before you and finds out he is defending over $60,000.00 in civil penalties, it seems to me that it’s a matter of fundamental fairness that he should be given the opportunity to ask for a continuance instead of continuing the hearing, assuming that what he is telling is the true that he doesn’t know about the other penalties.”

Mr. Theobold:  “I ran 200 ft of water main up the street and about 750 ft of gas line down the street and it ran into the ditch line.  The ditch line was pugged in.  And after they put all that in, the water came down the street, around that curve, ran down in the ditch, gullied out and washed all that stuff that Eslinger had put in there and washed it down into the street.  Now, of course, they’ve got a street sweeper and sweeped it up and pugged it back in, but, you know, and water just cut off that curb going into the property and I just threw my hands up in the air at the one point and I said I don’t know what else I can do about it, except for when that curb gets in and I’ll be able to stabilize my property.  The curb is in and it is stabilized.  You go over there today after this meeting and you will see.  I mean I don’t know what else I could have done at that point because it has been an issue prior to me doing any construction over there.  I mean that lady, I’d hate to see what her crawl space looks like.”

Jim Moegling:  “I certainly agree with what you have said and I guess I’ve got one basic question in terms of the curb.  I’m trying to remember in our subdivision.  That’s a requirement for the builder to put in curbs, or is the City required?  In other words, the curb wasn’t there to start with.  Whose responsibility was it for it to be there or after the fact?”

Bill Payne:  “There’s not a requirement that berms be installed if curbs are not already in place on a subdivision like or on a construction like this.  On new construction, it is part of City standards that there are curbs installed on new streets for newly created streets.  But in a situation like this where there were not curbs there to begin with, there is not a requirement that they be installed.  My understanding is that Mr. Theobold installed that section of the curb down part of the street and this particular section in front of this new house was installed as part of that construction.”

Jim Moegling:  “In new construction, who is responsible for the curb?  And the best I remember, it is the developer.”

Bill Payne:  “Yes, that is correct, in the case of new construction, that’s correct.”

Jim Moegling:  “The City Ordinance, but the developer does it.”

Bill Payne:  “That’s correct.”

Mr. Theobold:  “What I’m wondering, though, is it says the issuance of civil penalty, it says damage to the City of Chattanooga, has there really been $70,000.00 worth of damage to the City from this?  I mean, you said $723.00 for curb but I haven’t heard any other damages to the City of Chattanooga.  And the cause of the discharge, I think that’s from the storm water.  So, I mean, I’ve got two or three different, I mean, economic benefit gained by the violator, how would I be gained by any of this?  I’ve been trying to uh… ‘effectiveness of action taken by the violator to cease the violation’ I’ve done all the best I could with the money I had and the resources I had at the time, but I couldn’t keep putting money in that water coming from the street.  I mean, it’s just..It’d be like me spending $5,000 and the water come from the street and blow out everything I’ve do and keep doing and keep doing and keep doing it.  I’d be up to over $70,000.00 just for that, but I don’t know where it’s cost y’all over 70,000.00 for the damages.”

Bill Payne:  “Those are penalties that are there for violations of the Ordinance and that is something that the City has a permit.  We are required by that permit to require that soil stabilization and erosion and sediment controls be in place, be maintained…and”

Mr. Theobold:  “Yeah, if it can be maintained. But, without a curb, how can it be maintained?”

Bill Payne:  “And the curb was installed on August 18^th and you’re out there today.  I would ask why have you been four weeks and not gotten it stabilized to this point?  Perhaps there’s an argument to be made for portions of the site, certainly not all the site for part of the time until the curb was installed.  Now, should that curb have been….”

Mr. Theobold:  “Since you’ve put the curb in.”

Bill Payne:  “Not, since the curb was put in, but the issue is that City Ordinance requires that work be done…..that soil be stabilized on the site.   And there are some areas that placement of the curb has impacted where it does not run off, but at the same time, was that the City’s responsibility?  Was it your responsibility what needed to be done? What part of it was, you know, had that site not been cleared, those would be issues that we wouldn’t be dealing with either.  The soil stabilization wouldn’t have been an issue as well.”

Mr. Theobold:  “The lady that lives right down below it…it’s been happening prior to me even being over there.  I mean it’s been washing silt from in front of her street right there at her mailbox.  I mean, so, if can she go back and put a civil penalty towards y’all for not addressing the issue on her yard if it was prior to me even being over there?  I mean, water’s coming from somewhere.”

Mike McMahan:  “Mr. Chairman, I think you are getting into a problem here.  The normal procedure is to have a person testify and then they can have a chance to be cross examined and if somebody else needs to testify, they need to come back on rebuttal.  Your record is going to look like a mess.”

Jim Moegling:  “What, I want give as much freedom as we can because it is a substantial penalty.  But I also agree with you.  If you are not aware of the magnitude of this penalty.”

Mr. Theobold:  “I mean I know ignorance of the law is no excuse, but…”

Mike McMahan:  “You are asking for a continuance.  Tell Mr. Chairman, I’d like a continuance.”

Mr. Theobold:  “I would like a continuance to see what my rights are here.”

Jim Moegling:  “Does anyone on the Board have a comment?”

Ken DeFoor:  I’d like to ask a question.  Since I’m not a residential developer.  I fall under different guidelines.  Did you put a curb in in front of your property lines when you built this house?”

Mr. Theobold:  “Yes, I had to.  There was no curb existing prior to it.”

Ken DeFoor:  “Do you own the properties next door to you?”

Mr. Theobold:  “Next to the house?”

Ken DeFoor:  “Yes.”

Mr. Theobold:  “I do now. The blue house just sold and closing Wednesday.  Then that will by my property.”

Ken DeFoor:  “But you have no construction on these adjacent lots.”

Mr. Theobold:  “As of right now?  No.  My future plans is two more houses.”

Harry Tate:  “Mr. Chairman, I also have a question.  I was wondering was there any conversation, verbal dialogue between the parties subsequent to the written warning?”

Mr. Theobold:  “Between me and the City?”

Harry Tate:  “Yes.”

Mr. Theobold:  “Yes Sir, between me and Bobby Quinn, Mr. (Tim) McDonald.  Mr. McDonald was there.  Doug Fritz.  My first one was with Bobby Quinn.  I got him out there and said ‘I’m having a hard time controlling the water coming from the street’.  He said, ‘Yeah, we’ve got to engineer an underground stormwater system for this neighborhood.  He said right there in that one area, ‘we’ve got to get the water to keep coming from that’ and he said ‘we need a temporary curb.’  And I fought to get the temporary curb as long as I could without keep throwing money that I didn’t have at that time into something that kept flowing back over from the water coming from the street.”

Jim Moegling:  “Excuse me, I’m not..who is Bobby Quinn?  Is he in the City? 

Bill Payne:  “He works in Stormwater”

Mr. Theobold:  “I’ve made him aware of this.  I can’t … ‘course y’all don’t have when I talked to him up there.  It was some time in 2003,”

Jim Moegling:  “Well, I would suggest maybe Bobby Quinn should be here.”

Mr. Theobold:  “Yeah.”

Jim Moegling:  “And talk to him.  Request somebody make a motion for a continuance.”

Ray Adkins:  “I make a motion that we continue this.  You want next month, or is that enough time to be prepared?”

Mr. Theobold:  “That will be fine.”

Ray Adkins:  “I make a motion that we continue this in our next month’s October meeting.”

Jim Moegling:  “Okay do we have a second?”

(Two separate “seconds” were heard on tape)

Jim Moegling:  “Everybody in favor, say ‘aye’.”

(Several ‘ayes’ were heard)

Jim Moegling:  “The ayes have it.  We will see you all next month.”

Harry Tate:  “Mr. Chairman.”

Jim Moegling:  “Yes Sir.”

Harry Tate:  “Along that same line…I know that we have incurred, I assume that we have identified $723.00.  I would like to see how we derived at that cost.  Is it just salary or indirect cost?  I’m just wondering how did we come up with that amount?”

Bill Payne:  “It is direct labor, materials and equipment that associated with the installation of the curb and the back filling behind the curb.  Those were actual City costs.”

Jim Moegling:  “Mr. Theobold, I would like to say one thing.  You asked about the cost to the City.  Not meeting requirements and I understand your problem with that.   It does cost the City; forget the out-of-pocket money, as we are seeing with non-compliance.  It can well cost the City.  You know, it passes on to you.  But it really is a cost to the City beyond just dirt.”

Mr. Theobold:  “I understand that.  I’m not trying to be difficult.  I walk in and all of a sudden there’s a $60,000.00 fine.  That’s just a shock. I don’t have a problem to get it stabilized, to get it all done.  I’ll give you a weekly report.”

Jim Moegling: “Well, if you meet the requirements of what the Stormwater Management, obviously, we’re going to be satisfied.”

Harry Tate:  “Mr. Chairman.”

Jim Moegling:  “Yes.”

Harry Tate:  “I don’t know how the other Board members feel, but I feel that I would be a little more comfortable having seen this site myself and have some explanation of what went on on the ground.  I don’t know whether it can be arranged or not.  I don’t know whether other people would be interested in seeing it or not, but I would feel more comfortable making a decision if I personally see it and have an explanation on the ground. 

Jim Moegling:  “I think that is a good idea.  And maybe we can arrange that for people who would like to go.  Certainly would like to have you there with us (referring to Mr. Theobold).

Mr. Theobold:  “I would like to have the lady next door there.”

Jim Moegling:  “Yes, I would be happy to go.”

Mr. Theobold:  “There is also two other people that are writing the letters that the erosion went on prior to me being there.  It’s actually washed on the other side of the street.  But they put a curb down the other side.  I mean, if my problem, if it was just my problem, why didn’t they just put a curb on my side they ended up putting it on the other side as well because the water was coming across the street and washing people’s yards on the other side of the street.”

Jim Moegling:  “Bill, you will have to educate us too, in terms of these fines if they continue to the level that we can talk about whether the whole fine, part fine, I don’t know what our attitude is and we’ll have to talk about that in terms that if there is an adjustment, if that happens to be, what can we do about it?  And I guess I’m not speaking for the rest of the Board, but something I don’t know..our flexibility.”

Mike McMahan:  “You have substantial flexibility.”

Mr. Theobold:  “I’ll make a motion… (several people talking at once) I’ll write a check right now for the $7,200.”

Mike McMahan:  “If you are going to have an on-site inspection, I might suggest that you may want to set it up for, like, 2 o’clock before the next meeting, or something like that so that people have notice that want to be there…”

Ray Adkins:  “I think probably we need two on-site inspections because from all available forecasts, we’re getting a deluge of rain coming in here this weekend.  I think the sooner we can see it, the better we will have knowledge of it.  And maybe we’ll go back like I said again right before the next Board meeting.”

Mike McMahan: “If the individual wants to go see it, that’s not a problem. If you’re going to have a group meeting where you’re possibly talking to the neighbors or something, you need to have a notice to everybody.”

Jim Moegling:  “Okay, we will have to work on that and everybody’s got a website so I’ll work with you, Bill, to set it up and …….”

Ken DeFoor:  “Mr. Chairman.”

Jim Moegling:  “Yes.”

Ken DeFoor:  “If I may make one comment.  I think as this committee thinks about the Protocol…. I don’t know how you would do it, but this fine is breath-taking.  And I wish there was a way that there could be an alarm that went off and when a fine reaches $5,000.00 or $10,000.00, somebody would subpoena quickly or something happened so that this Board would not be . . . I mean this is a huge issue and this man may very well be a huge violator and he might be just a guy out there working trying to make a living.  I don’t know what is going on.  But this is a breath-taking fine.  And I wish there was a way, maybe, just in the future that after we pass a certain amount that  . . . I  . . maybe that’s not possible, but I know everybody in this department has all they can do and all they can say grace over, but . . .”

Mr. McDonald:  “We would not be opposed to that at all.  I think we have to work out the details of how we do that.  We would certainly like to avoid accumulating penalties.”

We are looking for compliance.  And whatever we can do to get that, then we are willing to do that.”

Jim Moegling:  “Thank you, we will look at that.  One of our agenda items is the protocol and for the enforcement and that’s our latest item there.  I think that’s a good idea, Ken.  If somehow we can do that.  If somebody notes.

Ken DeFoor: “Now that’s not being critical of the Stormwater.  They are doing a job.”

Milton Jackson:  “One thing, if he he’s been cited and he was, how long do you let this continue letting this happen?  How many times would you let this go on with anybody?  If you cite him, you give him a written.  You cite him, now you start fining him.  Now, there should be a cut-off point someplace.”

Mr. McDonald:  “Are you addressing me on that?”

Milton Jackson:  “Yes, you too.”

Bill Payne:  “You’re asking in terms of the history of how many times do we get to this point and, just to make sure I understand.”

Milton Jackson:  “Yes, how do you arrive at $71,000.00?  How do you arrive at that, because we need to know. We need to really know, because, you bring it to us so we can determine on what’s going on.  And we just came in here on this.  We don’t know what you done.  Nothing but what you told us here.  We need to have more information.”

Bill Payne:  “Right, and, obviously, at this point, we continued that case.  Just in general terms, what we have done on enforcement cases like this is, we establish what is that amount.  In some cases there are some things that fall within those guidelines of the enforcement protocol.  Other situations may be things that are outside of that, and we establish what those penalties are.  Again, what we did in this particular case, we sent a Notice of Violation that indicated there’s so many days to correct the violation and there’s no charge for that initial, there is no charge issued in that section. There was a deadline given for when the civil penalties would begin to accrue.  There was also, subsequently, a later date at which the penalties would increase.   And those penalties were all stated up front.  The fact that it is $61,000.00 today has to do with what today’s date is.  If we had had this meeting two weeks ago, that amount would have been less.  Then two weeks from now, it would have been more.  Again, as Mr. McDonald said, we are interested in compliance.  I think, in our minds, we thought that an increased penalty of a thousand dollars a day. . .. I didn’t expect to be here today presenting $61,000.00 in fines.  I thought we were going to be 5, 6, 7, 8, 9 thousand dollars at the most in terms of the amount of what that was.  And there had been some things that possibly need to be addressed in that way.  When do we reach those amounts?  What steps do we take?  But that is the process that we follow through which is establishing that there is a violation, giving time to correct it, and then stating here is how much the penalties are for failing to meet those deadlines.  And that is how we arrived at it.  At that point, what the total is is just a function of the number of days.”

Mr. McDonald:  “I believe you gave them a packet on all of that?

Bill Payne:  “Yes.”

Mr. McDonald:  “I believe if you can follow that package through, you will understand how we arrived at that.  And, it is a matter of he received notices that we sent out and then increased after he received those notices and then increased further.  So it is a progressive kind of a protocol for coming to the amount of the penalty.  And, if it is continued to be ignored, then, it continues to increase.  If it is dealt with, then the penalty is a minimum one or even none if it is dealt with promptly.  So, it is not something that we just decided today . . ‘we’re going to fine him for sixty-something thousand dollars.  This has been going on for a long period of time.”

Mr. Theobold:  “ And in the same breath, if I was continuing fixing my property and it keeps washing out, keep fixing it and retaining it, I’ve probably spent close to $50,000.00 and all I was asking for was a curb.”

Mike McMahan:  “Got some big issues at the next meeting.”

Jim Moegling:  “Something comes to mind too.  I have noticed in the letters  the pre-existing conditions .  When you come in with a plan for this, do you identify those pre-existing conditions where you were getting the run-off; the fellow says it has been going on forever.  How is that handled?  How do you baseline that?”

Mr. Theobold:  “All you have to do is probably go talk to the others down the hill or people down the street.”

Jim Moegling:  “No, I understand they’re not going to go look and talk to everybody in the City, but how does those pre-existing conditions get identified?”

Mr. McDonald:  “I believe this was submitted as an individual residence.  When an individual residence comes in for a permit, there is no requirement that we identify any kind of a problem there.  All he does is give us an outline of where the building is going to sit on the property, that he meets all the setbacks and zoning and that kind of thing.  We do not have a requirement that he has to submit a plan that shows where the drainage is going to take place or what drainage is going across it at that particular time.  So, we don’t have any way of requiring that at this point.  There is no ordinance that requires us to do that.”

Milton Jackson:  “You need to look at whether he created the hardship on his case.  Did he create that himself, or was it already there?  This is one thing we need to know too.”

Mr. McDonald”  “Yes, I think that is something that you will probably want to decide for yourself when you see the site.  I think it is a good idea to look at the site.  And Bill can be there to walk you through the situation as it existed.”

Jim Moegling:  “Okay, Bill, I’d like if we could do it this week.  If the people can get out here, let’s plan on it.  If you’ve got the time, if you’ll give me a call, or whatever, we’ll get everybody and see when they can go if they want to and take a look we will continue until next month.”

Bill Payne:  “My schedule is open so if there is a time that the Board wants to discuss now while we are all here.”

Jim Moegling:  “Is there any discussion when would you like to go, or if you want to go?”

Harry Tate:  “My comment would be according to what he (Ray Adkins) was saying.  We are scheduled to get some rain, big rain, this week.  The sooner the better.”

Jim Moegling:  “Okay. Who wants to go and tomorrow what time?  I’ll be there tomorrow.

(discussion of who will meet here and at what time among Board members ensued)

Jim Moegling:  “I would just soon meet out there.  I think I know where it is.”

(more discussing among Board members about meeting here and what time)

Jim Moegling:  “Anyone have any suggestions?”  One-thirty?  Twelve-thirty?  Twelve-thirty. You guys that are going to come here…wait, ‘guys’ I’m sorry, and I use guys indiscriminately…”

Cissy May:  “There will be guys because I will be teaching school”

Jim Moegling:  “Oh, okay.  That means the people that meet here need to be here a little bit early.  But I plan on being out at the site at twelve-thirty.”

Bill Payne:  “For anyone that does want to meet here, we will just say twelve o’clock and we’ll just meet right out here in the lobby and we’ll caravan over.”

Ken DeFoor:  That’s the eighteen hundred block of Glenroy?  Is that right?

Mr. Theobold:  “Between Crestwood and Altamont.”

Ken DeFoor:  “Okay “

Ray Adkins:  “I’ve got one question before he leaves.  The second Monday in October is a federal holiday.  Are y’all working Columbus Day?”

Bill Payne:  “We will be working.  I’ll actually be out of town that particular day, but we’ll be here.  The City will be here.”

Jim Moegling:  “What’s happening the 2^nd?”

Ray Adkins”  “It’s Columbus Day.

Jim Moegling:  “Oh, okay.”

Ray Adkins:  “It’s a federal holiday.  I didn’t know if the City closed that day or not.”

Jim Moegling:  “Oh, I thought you had something special in mind.”

Ray Adkins:  “No.”

Mr. McDonald:  “Can Bill…he is saying he’s going to be out of town that particular day.  I think his testimony is critical.  Would it be acceptable to have this case moved to November so Bill can be present?”

Jim Moegling:  “Oh, I see what you are saying…”

(discussion about that being 2 months and $1,000 a day)

Jim Moegling:  “That’s the reason I asked.  The fines are essentially on hold now.  Is that correct?”

Mike McMahan:  “I think sixty-one whatever sixty-thousand it is …”

Bill Payne:  “It also seems like Mr. Theobold is taking steps as of today to get the site stabilized.  So, that would officially close things out.”

Jim Moegling:  “What if it isn’t?”

Mr. Theobold:  “We’re adding more …

Who?:  “What if rain comes and knocks everything out? Isn’t that what it has already done?”

Jim Moegling:  “Yeah, are you open for more penalties?  That is what I was wondering.”

Mike Mahan:  “It would be a new penalty.  An entirely new circumstance.”

Bill Payne:  “We actually did go get some pictures of the site currently as it is.”

Jim Moegling:  “Yes we saw.”

Bill Payne:  “These are actually later from the ones you saw.  They are from this morning as we continue to monitor.  We’ll be out there tomorrow to look at it as well.”

Jim Moegling:  “Okay.  And then we can look again after Ivan if you want to.  Alright.  Thank you, Mr. Theobold.  That is also along the lines of what our next item in terms of the enforcement protocol.  We have several comments and we have copies of them.  And we are going to get to anybody that wants to make comments, but some of the things that you are involved in here will undoubtedly have an effect on what we think of the enforcement protocol and how we handle that.  And some of the things we have heard here today, I’m sure, will be incorporated such as a warning before you get in completely over your head and not know it.  So we need to look at that.  But the next item is comments on the proposed enforcement protocol.  Like I said, we have several comments already.  Do we want to go through those, or do we want to collect those and work on them?”

Bill Payne:  “Included in each packet is a copy of all the written comments we have received to date.  I think there are certain members who may have submitted comments are also here to speak orally as well to add comments.”

Jim Moegling:  “I can’t speak for the whole Board, but I haven’t had a chance to read these.  So I don’t know what is included.  So as of right now, they are there.  You read them.  For the people who would like to make comments, please use the mike over there; identify yourself and what organization you are with.”

Julian Bell:  “Thank you, Mr. Chairman.  My name is Julian Bell.  I am the executive officer of the Homebuilders Associations of Southern Tennessee.  We represent the area homebuilders of about 650 members of our Association.  We appreciate the opportunity to address the Board on this issue.  Erosion control and Stormwater is an extremely important issue to us.  But I tell you what.  I’ve got to say, I’m floored before I start.  I’ve not ever seen a $69,000 fine.  I haven’t seen the site. I hope it’s bad, because I hope it’s worse than those pictures look like.  And, frankly, I’m not sure I’d want to be in your shoes.  I think that this may become a long process with some long meetings in the future and if the fines of this magnitude…I don’t know, Mr. Theobold, I hope he’s a bad person, because $69,000, I doubt if the lots that the water went across are worth that much.  But, having said that, let me just briefly, I won’t take up too much of your time, go through our comments that we have given to the Chairman.  I gave it to Mr. Payne and Mr. McDonald.  We faxed it to them today.  First of all, we have not had a chance to review this with our members.  We got a letter from Mr. Payne.  It was dated August 23^rd.  I think I got it a couple days later.  I had sent it out to our members.  We have not had a chance to get together on this and we will be doing that before your next meeting.  We do not have to get permits for the work that we do unless we are developing land.  But we do fall under the rules and regulations of the Stormwater Board.  And the vast members of our board are conscientious about this.  We want to work with the department.  A lot of times, these regulations are difficult to figure out exactly … it’s not an exact science how do you stop the run-off? How do you prevent mud from getting into the street, these types of things.  We want to work with the department and the stormwater division on each and every site.  I think the Board I hope you realize that it is possible to track mud for there to be mud in the street and it not be the person that owns the property or contractor’s fault.  He may not even know or she may not even know who did that.  They may have put all the gravel in place, all of the things.  They have done everything that they were asked to do and there still be mud in the street because somebody came on that site that they didn’t have any control over.  And, as soon as they figure it out, they’ll go get that mud out in the street.  But the enforcement protocol sadly doesn’t take that into account.  And I think you’ll see the issuance of some fines where the people that are standing up here…they didn’t really do anything wrong.  They put in the controls that they were asked to put in and somebody else got mud in the street or whatever.  As far as your first section about land disturbing without a permit, those people should be penalized.  We don’t have any problem with that.  If you don’t get a permit, you are just uninformed and you deserve what is coming to you.  Tracking mud on the street which is section 2; we would like to see a safe harbor provision where, if there is an owner or a general contractor that has done everything that is asked for them to do, everything that the Best Management Practices require them to do and he’s not the violator, we’d like to see a safe harbor provision for that.  And we would hope there would be some leniency on owners and general contractors that have made sincere efforts and done what they were supposed to do, but somebody else, none-the-less tracked mud in the street.  I think that is important.  We also think that should be a site-specific violation.  And maybe, Mr. Payne I don’t know is that a site-specific or is that a contractor’s specific violation tracking mud in the street?

Bill Payne:  “The only contractor specific violation was the first one which was for work without permit.”

Julian Bell:  “No permit?”

Bill Payne:  “Yes.”

Julian Bell:  “Okay, so this is a site-specific one? Okay, good, well then that might …”

Bill Payne:  “There may be issues that would be addressed outside of the protocol if we continue to have the same problem with the same contractor on multiple sites, and then there may be additional penalties than what you see.  The way this is written, you only see site-specific.”

Julian Bell:  “Okay. On section three, that is the failure to install, maintain or use the proper controls or sediment controls.  We would like to see a notice requirement and a reasonable opportunity to correct the violation before the offenses would accumulate.  Section four, the failure to comply with approved Stormwater design plans.  Is that for new construction or is that existing construction?  Section C where it says failure to implement approved Stormwater design plan previously occupied…”

Bill Payne:  “That section—it doesn’t matter whether it’s for existing or new.  The way it’s written, it applies to both.”

Julian Bell:  “The reason we asked, you had that the Department can issue an order that you’ve got thirty days to have all the infrastructure in.  And that might not make sense if it was a brand new street being constructed.  The construction timetable might be a lot longer than thirty days.  That was the only reason I asked. 

Bill Payne:  “Okay.”

Julian Bell:  “And our comments are in our letter.  I don’t need to go really that.

Bill Payne:  “Okay.”

Julian Bell:  “Often, the plans that you come up with.  The ones that are approved by Stormwater Management Division as far as your erosion control of your stormwater as far as your stormwater facilities are changed in size; specifically with respect to the temporary items that are going to be there; this silt fence and any temporary measures, like a lot of times, those may not be in the exact right spot on the plans and that’s not discovered until you get out in the field.  We think there ought to be some provision for the owner slash contractor and the Stormwater Management Division to come to an agreement on how to move these or make them stronger, make them weaker, whatever.  It’s not making sense according to the plans, but not go through the expense of totally revising the plans.  And that is something that we’d like to….I think there will be some further comments on that by other people.  In general, we’re very concerned about the issuance of penalties of this magnitude.  We’re very concerned about the issuance of criminal citations for this.  And that’s part of the protocol as well.  There are some other items in our letter, some rather major items; I will let you peruse that.  I will mention one and I am not an expert on it.  Perhaps the City Attorney’s office could shed some light on it.  Our organization as well as AGC and other organizations were very involved in work with the City Council and citizens groups regarding clear cutting in the City.  And if you followed that at all, it came out of two sites in the City; one in particular over on Concord Road that had some significant erosion control problems because of the clear cutting situation.  At that time and in those meetings, we were told by the City Council and representatives from the City Attorney’s office, there was nothing the City could do, that they were limited by the State Constitution at $50 a day fines.  And so I don’t know how that plays and now I see we’ve got $60,000 fine.  I don’t know how that plays, but they’ve got something that needs to be investigated.  We want to be involved in the process.  I don’t know how this protocol was arrived at.  I assume that it is a fairly new thing that was adopted on August 9^th or temporarily.  We would like to work with the division Mr. McDonald and Mr. Payne and maybe come up with some addition, some changes to this.  We haven’t had a lot of time to go through it, but it’s a very, very serious matter to our members and like I said in our letter, we want to be conscientious.  We want to do the right thing.  At the same time, we want to make sure that the true wrongdoers are punished if they need to be punished.  And that the magnitude of the penalty don’t outweigh the harm that has been done.  Thank you.”

Jim Moegling:  “Thank you, Mr. Bell.”

Roger Tudor:  “Mr. Chairman, Members of the Board, my name is Roger Tudor.  I represent the Associated General Contractors of East Tennessee.  I have an opportunity to gather my membership and have them review the enforcement protocol that was presented to you all at the last meeting in August.  And we too have some concerns about it.  I’m glad to hear about the site-specific as opposed to contractor-specific.  We do feel like that if contractors go out and do not procure the Land Disturbing Activity Permit, there should be firm penalties there.  We like the liberal plan field adjustments for our members.  The contractors that are in our City follow the same guidelines that all contractors have to follow.  So, if you’ve got a renegade out there that is not acquiring the purchasing the Land Disturbing Activity Permit, he should indeed be penalized.  Next, there’s some verbiage in there about first offenses where the owner would be notified of the contractor’s negligence without the contractor at first addressing those issues.  If silt fence falls down, that’s the first offense on that job site.  Give that general contractor an opportunity to put that silt fence back up before you go talk to the owner.  We just don’t want to get into a bad situation right at the beginning of the project with the contractor and owner.  Now, if it continues, absolutely notify them.  In many instances like Mr. Bell was speaking, the developer is the owner of the property at that time.  But there are some instances out there in the commercial environment that that may not be the case.  And we’d just rather not get started off on the wrong foot with that owner.  The owner may think it is stronger than it really is.  There’s some verbiage in there that speaks about the proper construction.  It talks about aggressively.  And we think that word ‘agressively’ ought to be more defined.  Give some reasonable time period that that offense should be dealt with accordingly.  Just like this gentleman here.  Since of May of ’03, what’s reasonable?  As I recall, I think it was May of ’03 was his first violation.  But whenever it was, there’s a reasonable period of time out there that those items should be visited.  And then, as Mr. Bell spoke about, we, too, think that after you get on a project and you see that the silt fence really can not go across that stream, that the engineer that drew the plans didn’t realize that stream was out there, the contractor was savvy enough and understands the Best Management Practices enough to move that silt fence on the site.  So, we would propose that you all give some consideration to allow the contractor to mark up what we would call those as-builts or on-site plans.  To mark up where the real silt fencing, the erosion and control sediment processes are.  We’d ask that you allow that contractor to mark those, to identify those on that set of plans.  Let Stormwater managers or the authority of Stormwater approve those drawings and not go back through the plans review process that Mr. Bell was speaking of.  That is not to say that a pond out thee, if a retention pond has been identified on a set of plans that is not to say that the contractor should be able to take it upon themselves to re-route that pond.  We are saying that if there are design issues out there, that contractor should not have the ability to go out and re-design where that pond should be.  We’re simply saying that when those sediment and erosion control methods really are not real practices on the job site, we would like for you all to give consideration allowing that contractor who has already acquired that permit that does have those penalties, or possibilities of penalties, being incurred on him, we would like for him to have that opportunity to mark it up, present it to the individuals, the authorities at the Stormwater Department, and let those folks say ‘yes, we agree with you.  We concur.  They can move forth’.  We do appreciate what you are doing.  We certainly appreciate Mr. Payne and Mr. McDonald and wish everyone lots of luck.  Thank you very much”.

Jim Moegling:  “Thank you, Mr. Tudor.  Anyone else? Mr. Bell?
Julian Bell:  “Yeah.”

Jim Moegling:  “I heard that you may be thinking we need more time on this.  The next thing that we have is to finalize it at the next hearing or the next meeting.”

Julian Bell:  “Well, from our members’ standpoint, like Roger, I represent a lot of members and this is the letter that I’ve sent to you and the comments I made today are largely my comments.  I think they will be shared.  But, there may be other comments from our members.  The two weeks just hasn’t been long enough to get the people together.  It’s really hard to schedule.  And if we’re coming to the next meeting for a vote, I would like to see it be considered for a vote in November meeting.  And we’re totally at your mercy on that.  This is an extremely important issue to us.  And maybe that’s not possible or if it would at all be possible, we would really appreciate it.  And it would also give me some time.  I just took this job August first or second and I have been a builder and developer in town a long time, my family has.  But I personally haven’t met with Mr. Payne and I’d like to sit down with him and go over the situation.”

Mr. McDonald:  “Okay, can I speak?  I think that’s reasonable.  I know he does have a lot of members and they don’t meet that often.  So, we don’t have a problem and maybe you want to have discussion on it.  Some more discussion on it next month, but not take final action on it until the following month to give them plenty of time to do that, because we do appreciate them.”

Jim Moegling:  “Where does this stand?  You need an enforcement policy, right?
Mr. McDonald”  “That’s correct.”

Jim Moegling:  “Is it going to delay it?  Is this going to affect it at all?
Bill Payne:  “It’s still in place right now.”

Mike McMahan:  “Essentially, we are abiding to it as it is written right now.”

Mr. McDonald:  “That’s right.”

Mike McMahan:  “So, if we have problems, then we’ll have to use our flexibility.”

Mr. McDonald:  “Mike can give you that.”

Bill Payne:  “He’d best keep us straight.”

Jim Moegling:  “That sounds good.  I would like to delay the motion.

Ken DeFoor:  “Yeah, but before the motion, I would like to say that I do appreciate Mr. Tudor and Mr. Bell.  They’ve both brought a lot of good information in here.  And as an engineer, sometimes engineers don’t use a lot of common sense and I understand what you’re saying.  And I don’t think I would personally be prepared to move on this the next meeting at all.  I think we need to get consideration before we put a final version out.”

Jim Moegling:  “Well, I think it is important, as we can see, this escalates into some pretty good money.  So, it’s very important that we get this.  Because it’s going to become a guideline.  There’s things in here that we need to think about.  Because, once we’ve got the protocol, and the requirements that we now are seeing coming from the EPA, we’re going to live to them.  So, it is worth taking time and getting it in order.  Not that we can’t modify, and so, if we see problems along the lines you were talking about the as-built drawings.  I don’t see any need for a whole brand new permit for a red line as long as the Stormwater Management people agree with it.  Just doesn’t make any sense to re-do and start all over.

Cissy May:  “On that issue, there’s one of the letters that we got from a Elizabeth Johnson says that it deserves more public circulation because many people did not see our small newspaper notice of the meetings and maybe this could be brought up in the neighborhood association.  So, maybe we need to make it a little bit more public.  Other people might have input that we never would have tapped yet.”

Jim Moegling:  “I’ve thought about that that’s one of the requirements when the non-compliance order of public information.  How do we get this word out to the general public?  To your people and so on.  It’s going to be incumbent on all of us to talk to our friends.  I’ve asked my friends since I’ve been on the Board.  I say, ‘What are you going to get out of Stormwater fee?’  They say, ‘I don’t know’.  Well, they need to know.  And they need to know the seriousness of what’s coming in the future.  How we get that out there, I’m not quite positive.  That’s one of the items that we’re working on and maybe we’ll find some news reporter that really has a passion for this sort of thing.  So, yes, there needs to be a lot of information out in public.  How we get there, I don’t know.  But, certainly, your organizations can help.”

Cissy May:  “And I’d also like to add in the last meeting we talked about maybe looking at some protocols from other cities.  Have you been able to come up with penalties and things that other Cities charge for us to look at?”

Bill Payne:  “We have made some contact with Nashville and Knoxville both in terms of some specifics and they are getting that information for us.  They had not gotten it as of this meeting.  We’re going to provide that information to you once we get it.”

Jim Moegling;  “Mike, I’ve got a specific question:  I asked Bill before the meeting, ‘What are our requirements in terms of the Sunshine Law?’  I read the notes last time in terms of perhaps a committee that we get together and work on this.”

Mike McMahan:  “For example, if you are going to meet there tomorrow, what you’ll need to do today is to adjourn your meeting until 12:30 tomorrow, because this is an advertised meeting.  You’ve got basically two requirements or three.  Number one is the meeting we advertised which we do by publishing in a public notice in the newspaper there would be a meeting today at 3:30 at the DRC in the conference room.  That’s all it says.  And that cost us a hundred and some odd dollars, as I recall, to publish that kind of a notice in the newspaper.  You have the requirement that you take a record of people here, so we have the sign-in roster for people to sign.  That’s the second requirement.  The third requirement, you keep minutes of the meeting, which, of course, we have a secretary to do.  And that’s the other requirement is that you do not deliberate your business outside the presence of the meeting.  The Sunshine Law basically says that all public business to be conducted in public.  So you don’t call each other up on the phone and say ‘Hey, what do you think about that case we’re about to hear?’  You’re supposed to come in the Board, have an open mind, deliberate in public and make a decision in public.”

Jim Moegling:  “What about a committee?”

Mike McMahan:  “If you have a committee, the committee has to be advertised as if it were a regular meeting.”

Jim Moegling:  “Okay, that’s what I wanted to know.”

Mike McMahan:  “But you can have committees.  You just have to advertise your committee meeting.  The same policies, the same procedures.  You have a committee, but you go through the same rigmaroles for it.”

Jim Moegling:  “And that’s one of the things again we asked, I asked in terms of the hearings on the penalties.  Whether we should even know about it beforehand and it sounds to me that what you’re saying is best maybe that we don’t know.”

Mike McMahan:  “Well, you know, it’s sort of like it doesn’t hurt to know what you’re coming to the meeting about.  But not going to send you a one-sided story about this is what the department thinks.  Because, somebody like Mr. Theobold wouldn’t have the information to you for you to consider his side of the story.  Obviously, it’s important to know that you’re coming to a meeting to talk about civil penalties at such and such location and you know what the claim is, but you shouldn’t be getting any significant evidential background for that complaint.  Just to know why you’re here.”

Jim Moegling:  “Okay.  I didn’t know how much detail we should know.”

Mike McMahan:  “I’d say minimal detail up in front of the meeting.”

Jim Moegling:  “Okay, we had a motion and I need a second on delaying the decision on the enforcement protocol until November.”

(“second” was heard on tape.)

Jim Moegling:  “Okay, motion has been made and seconded.  All in favor say “aye”. (Aye’s heard on tape)

Jim Moegling:  “All oppose?”

Jim Moegling:  “The ayes carry it.  So, we will do that.  And look to November.  In the interim, I would like as many people to comment as they could.  How we get that to the general public is another problem.  You can’t continually advertise in the paper.”

Mike McMahan:  “We can’t buy a whole big page ad.  It might be pretty expensive.”

Jim Moegling:  Yeah.  Okay, let me find my agenda.  I think that is it except if anybody wants to bring up any new business.  Anybody have anything to announce to the Board?  Comments?  Future actions?  Okay now, from what I heard, we should introduce a motion to”

Mike McMahan:  “To end this meeting until 12:30 tomorrow at the property.”

Jim Moegling:  “Whatever that is, I’d have to find it.  And we’ll meet Mr. Theobold there at 12:30.”

Cissy May:  “As for the members that are not here today?  Have you thought of that?”

Jim Moegling:  “I’ll send an e-mail or, Bill, if you want to do it, either way.  Okay, I’ll just send an e-mail to everyone and let’s see, we’ve got one, two, three, four, five --- you said Doug was out of town and will he be back, I wonder?”

Bill Payne:  “He didn’t say when he would be back.  I’m not certain.”

Jim Moegling:  “Okay, well, I’ll just e-mail and whoever is there.  So, I’ll be there at 12:30 and meet you guys there and whoever wants to can meet right here at this room.”

Bill Payne:  “Anyone that wants to meet here, we’ll just meet here between 12:00 and 12:15 and just right out here in the lobby and we’ll caravan from there for anybody that wants to be here.”

On September 14, 2004, at 12:30 p.m., the meeting was reconvened on Glenroy Avenue with Jim Moegling, Ray Adkins, Jim Hoff, Harry Tate and Milton Jackson present.  Also present were Mike McMahan, Bill Payne, Doug Fritz, Tim McDonald and Robert Quinn from the City.  Chris Theobold of CT Construction was present as well.  The site was reviewed and walked to understand the flow of water and the sequence of events.

Correction: Mr. Clyde Sawyer also attended the meeting on Glenroy Avenue.