May 17, 2011

Homebuilders settle stormwater lawsuits by EPA and Md.

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Stormwater pipe by Gerick Bergsma 2008 | Marine Photobank

By Gerick Bergsma 2008 | Marine Photobank

By Barbara Pash
Barbara@MarylandReporter.com

Stormwater pipe by Gerick Bergsma 2008 | Marine Photobank

By Gerick Bergsma 2008 | Marine Photobank

The final chapter in federal efforts to enforce water regulations at construction sites in Maryland was written in February when Beazer Homes USA finalized a civil consent decree with the Environmental Protection Agency for alleged violations of the Clean Water Act.

Beazer is one of six homebuilders in the state that the EPA charged with violations of the act. The Maryland Attorney General’s Office participated in the six suits as a co-plaintiff with the EPA.

According to the EPA, settlements were reached earlier with five other homebuilders: Hovnanian Enterprises, Inc., Centex Homes, KB Homes, Richmond American Homes and Pulte Homes.

Raquel Guillory of the attorney general’s office said the state’s involvement in the suits was minimal. “This was a federal case, not a state case,” Guillory said of the Beazer case. “The EPA sent us a draft consent to review, to make sure it was amenable to whatever damage was done, that it was legal. That’s our role.”

Nationwide enforcement

From 2008 to 2010, the EPA conducted a nationwide initiative against the construction industry for failing to practice sediment controls as required by law.

In a statement, the EPA said that “the homebuilders’ storm water issues are no longer one of the EPA’s national enforcement initiatives. However, EPA will continue to take enforcement actions against home builders, as appropriate.”

During the course of the initiative, the EPA filed suit in 35 states on a total of 2,200 construction sites in 2008 alone. The focus was on commercial big-box construction and national residential homebuilders, according to John Mueller, vice president for litigation for the Chesapeake Bay Foundation.

“This was a national strategy to address stormwater run-off,” Mueller said. “First they started with the commercial builders, like Target and Walmart. Then they went after the large homebuilders.” In 2008, for example, Home Depot paid a fine of $1.3 million and agreed to establish a stormwater compliance plan for future construction.

John Kortecamp, executive vice president and CEO of the Home Builders Association of Maryland, said, “These were national builders as opposed to local builders. They were all high-volume and high-profile, and they were singled out by EPA to make a statement.”

“The message spread throughout industry, “said  Kortecamp. “There had to be greater rigor on site. The industry responded well.”

The Clean Water Act requires permits for construction sites and pollution prevention techniques such as silt fences, phased site grading and sediment basins to prevent common construction contaminants from entering waterways.

Polluting the bay

Dawn Stoltzfus, communications director of the state Department of the Environment, said the EPA suits “get to the heart of water pollution. The feds are moving to address polluted run-off. Polluted stormwater run-off is a big problem.”

Stoltzfus added that “the suits reflect the state’s emphasis on the Chesapeake Bay. Poultry litter, wastewater management and water run-off represent the three major sources” of pollutants to the Bay.

Each of the six homebuilders agreed to pay a fine to the state and to undertake company-wide measures to comply with the law at current and future construction sites around the country.

Besides Maryland, the EPA cited Beazer Homes in 20 other states. The Delaware-based corporation agreed to pay a civil penalty of $925,000 nationwide, of which $15,289 goes to Maryland based on the number of sites, 12, in the state. Beazer also agreed to a compliance program the EPA valued at $9 million nationwide.

“Given their limited resources, it was smart to focus on the national groups,” the Bay Foundation’s Mueller said. “That doesn’t mean all sediment control problems at construction sites have been addressed. But the smaller builders don’t have the resources the national builders do.”

Mueller also called the initiative a plus for Maryland and for the Chesapeake Bay region as a whole. Homebuilders in Virginia were also cited, “so the suits have a regional effect,” he said.

Comparing the problems in Maryland to other states, Kortecamp said, “I didn’t notice Maryland being particularly egregious.”

In Maryland, 170 sites were cited, according to EPA figures, compared to 116 in Virginia, 21 in Pennsylvania and 12 in Delaware.

Kortecamp contended that the EPA initiative resulted from some “large storm events.” Builders’ traditional methods to contain water damage were effective in a normal rain storm but failed in a torrential downpour.