A wave of changes to the city's sanitary and storm sewer systems, including the threat of more serious fines and penalties, is coming in the wake of LFUCG's consent decree with the Environmental Protection Agency. The settlement, which will cost Lexingtonians an estimated $250-$300 million over the next 11 to 13 years, requires the city to eliminate all sanitary sewer overflows, which cause untreated sewage to be discharged directly into the environment, and develop new storm and sanitary sewer systems and policies to assure that Lexington can handle both current and future sewage capacity before allowing more users to tap into the system.
While the city's immediate attention will be focused on fixing the most serious flaws in its sanitary sewer system, including the need for a back-up power source at its wastewater treatment plants and an overhaul of four pumping stations, the city will soon be revamping its storm water policies and instituting a yet-undetermined storm water fee to pay for the improvements. Local homebuilders and developers, meanwhile, say they've been ready for this changing tide in storm water management.
Inspectors in the Division of Water and Air Quality will have to start enforcing new ordinances and more stringently go after violations that previously were often overlooked, according to Charlie Martin, director of Water and Air Quality for Lexington.
"They were not necessarily being enforced consistently," Martin said. "That was a problem. Also I think that we were in a situation where we were not accurately documenting the things that we were enforcing."
That too will have to change. The EPA will now be looking over the shoulders of city officials, monitoring Lexington's progress in cleaning up the sanitary and storm sewer problems.
"Verbal instructions don't play out during audits, so in developing these protocols we have to demonstrate that we are consistently applying the ordinances that are in place and also developing new ordinances to meet today's standards and enforcing them consistently and demonstrating to the EPA that were are dealing with it now," Martin said.
Changing business practices
Todd Johnson, vice president of the Homebuilders Association of Lexington, said he and his membership know the consent decree will bring stepped-up enforcement of storm water regulations, but Johnson does not think it will dramatically change the order of business for builders who are already following the letter of the law.
Johnson said the building community has become increasingly aware of storm water concerns, particularly in the last three years, and has been working with the city's engineering department on making improvements.
"Those builders who haven't gotten serious about it, they are going to have to get serious about it," Johnson said.
LFUCG's Department of Law commissioner Logan Askew said pure economics were why some hadn't been serious about making sure storm water systems were up to snuff.
"In the past, our penalties have been pretty minimal. There are people willing to pay the cost of a violation as opposed to complying with the regulation. It made more economic sense," Askew said during a briefing for Business Lexington with Mayor Jim Newberry, Environmental Quality Commissioner Cheryl Taylor and Martin.
"That's part of what EPA expects - that we're going to really beef-up our ability as a government to enforce these rules on our citizens," Askew said.
As part of the agreement, the city will have to conduct monthly inspections of at least 90 percent of active construction sites where mud or debris could be washed into storm sewers or local streams. The city will also have at its disposal a system of escalating penalties, and stop work orders, when violations persist.
Taylor said those doing construction in town have definitely seen the writing on the wall, in terms of the higher scrutiny expected of storm water policies both locally and nationally.
"The building industry is already pretty savvy, and they know that this is going to be different. And it's not just a Lexington issue; really it's a national issue. Storm water management around construction sites has not been strictly enforced because it has not been clear, and now I think the nation will become much more clear about what needs to be done."
But Johnson said local builders and developers are already on top of that issue.
"You can drive through just about any subdivision ... anywhere you're seeing new development going on, and you're seeing those erosion control measures in place now by the majority of the builders out there," Johnson said.
Taylor said past problems can be chalked up to inconsistency in enforcement efforts. "Training is the key," she said. "We've talked about standard training protocol, people being certified, and people learning what the technology is. We're still really combing through the consent decree to make sure that everything we need to enforce, we're going to enforce.
"We have performance standards we've been told specifically we have to enforce, so I think we can come up with a very standard way to train people or a way to develop and certify folks," Taylor said.
The homebuilders, according to Johnson, are prepared to start seeing their counterparts in engineering on building sites much more often. "But for companies who are already doing what they need to be doing, it shouldn't be that big of a change in business for them," Johnson said.
Greg Padgett, a project manager for Padgett Construction, said the new storm water requirements are expected to include the submission and approval of an erosion control plan before a building permit will be issued on future projects, which might cause some minor delays, although city officials have told him it will not slow the process.
"It may prolong the initial building permit process by a day or two, I don't know," Padgett said. "They say it's not going to. ... We'll wait and see if that happens."
Padgett said his company has been good about managing on-site storm water issues on the front end, but the major problem industrywide, he said, is keeping the site's erosion plans intact throughout the entire construction process.
"People have a tendency to run over what storm water control/erosion control items are installed," he said.
Chances for partnerships
The need to completely overhaul the city's infrastructure creates a unique opportunity for developers looking to do urban infill projects, Taylor said.
While there is underutilized land in the urban core, the existing infrastructure doesn't always lend itself to major redevelopment.
"In the past, for a developer to come in and do something with that, they would have pretty much had to tackle the whole cost of (replacing the infrastructure)," Taylor said. "This program will help to work through a partnership; there's ways we can help because of the consent decree in helping to establish better capacity, and then we can help the developer utilize that property," Taylor said.
But developers aren't the only ones who may be able to take advantage of the city tearing up streets to get at our outdated sewer system. Martin said he's been in contact with utilities around town to see if they can time projects so that they would be able to split costs of underground work, saving both taxpayers and rate payers money. Talking about partnerships between entities, or even within the city is a far cry from where the city was before, according to Martin who used to head the city's division of sanitary sewers, which until very recently was managed separately from storm sewers.
At the February Council work session where the EPA settlement was announced, Martin said the previous structure of government saw no coordination between the two outfits, meaning the sanitary sewer division could tear up a street one year for work and the storm sewer workers could come back the very next year to the same road when it all could have been done at once.
Development of new industry
Work on the scale of replacing the city's infrastructure requires more than an average street contractor, Martin said. But those specially certified workers are in short supply and high demand as Cincinnati, Northern Kentucky, Louisville, Nashville and Knoxville all deal with their own EPA consent decrees.
"I am concerned about the market's ability to be able to provide the contractors," Martin said. "Between all these cities, we're all competing for these same heavy, highway types of contractors. So one of our challenges is to make sure that we package our work in a way that it is attractive for folks to do business here, as opposed to doing business in Louisville," Martin added.
Fundamental change
in approach
With Lexington getting in trouble with the EPA and going through the trouble of fixing a neglected system, Mayor Newberry hopes to see a change in attitude in the way the city is run.
"For a long time there's been a culture of (doing) what's normal and necessary to get past major problems without any overriding view of what we're trying to accomplish with services. So what I hope this will do is help people see the sewer
system as a part of our overall welfare, to protect the quality of life and the environment and keep Lexington clean.
"It's got to be maintained and cared for, repaired from time to time, replaced from time to time, and if you adopt that kind of philosophy then you ought to be able to avoid some of these overflows and spills and extreme problems," Newberry said.
"We are trading on our environment daily as a community," the mayor added, "and we need to do a lot better job with protecting our key component in that."
Susan Baniak and Tom Martin contributed to this story.