Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
December 22, 2004
David Morgan, Director By e-mail only
Division of Water
14 Reilly Road
Frankfort, Kentucky 40601
Re: Louisville-Jefferson County Erosion
Prevention & Sediment Control Ordinance
I am writing to request that the Division of Water require, as part of the NPDES permit obligations of the Metropolitan Sewer District, an independent audit of the efficacy of the Erosion Prevention and Sediment Control (EPSC) Ordinance in preventing violations of water quality standards for receiving streams.
As you are aware, since 1994 the Metropolitan Sewer District, as an identified MS4 permittee, has been under a permit obligation to adopt an ordinance controlling erosion and sediment loading from construction site runoff. Belatedly, the county government adopted such an ordinance in 2001.
During the development of the ordinance, KRC expressed concern that the ordinance might not produce sufficient reductions in sediment loading to assure the quality of the receiving streams would be protected against impairment. Among KRC’s concerns were that: (1) the requirement to design and install controls sufficient to meet a goal of 80% capture of sediment from a site1 was arbitrary and unrelated to in-stream quality protection since, depending on the size of a disturbed area, 20% sediment loading from that site might severely impair a stream; and (2) that reliance on installation of “best management practices” with no sampling or other monitoring of the effectiveness of the measures was problematic, since, as the Division of Water noted in comments on the EPA remining rule, none of the typical BMPs have a documented reproducible correlation between the application of a BMP and a quantifiable improvement in water quality. The lack of a requirement to model anticipated sediment yield during the design phase, and lack of application of measures demonstrated to result in the necessary capture efficiency as deployed, coupled with the lack of required sampling up and downstream of the sites, prevents the agency from knowing whether the ordinance is achieving even the 80% goal, no less actually protecting water quality to necessary levels.
I am not aware that since implementation of that ordinance, any audit of the efficacy of the ordinance in protecting water quality from adverse effects of construction, has been undertaken. MSD has released a November 2004 Report captioned “2004 Erosion Prevention and Sediment Control Audit”, but that audit, conducted by MSD personnel under the guidance of one of the two consulting firms that guided development of the EPSC Ordinance, is not an audit of the effectiveness of the ordinance in protecting water quality. The audit is instead limited to identifying how well the EPSC program is being implemented. Obviously, if the underlying ordinance fails to adequately control sediment loading, even 100% implementation (and not the 70% overall average that the Woolpert Report indicates is being achieved) will not produce the needed protection of in-stream water quality.
The EPSC Ordinance, after adoption, was subsequently weakened to remove enhanced protections for sensitive features and to limit enforceability of the ordinance and public participation. KRC is concerned that an audit, conducted by an entity unrelated to the District or to any party that participated in the development of the ordinance, should be conducted to determine whether the EPSC Ordinance achieves the required protection of in-stream water quality from construction sites, and if not, recommending additional accountability and other measures to produce that result.
Thank you in advance for your consideration of these concerns.
1 This requirement was itself later weakened in September, 2001 by removing the requirement that the controls meet that requirement as installed, and by limiting agency authority to take enforcement action against inadequate controls.